Advocacy of the establishment of mental health specialty courts in the provision of therapeutic...

I. Introduction

In Florida, a mentally ill homeless man was arrested for shoplifting a $1.16 ice cream sandwich. He was imprisoned because he lacked the $25 bail necessary for release.' Laurie Flynn, Executive Director of the National Association for the Mentally Ill (NAMI), notes, "Prisons and

jails have become the mental hospitals of the 1990s."2 One observer states, "Our jails, whether we like it or not, are becoming our largest mental-health facilities."' Another comments, "Most of the people I see [in jails] don't belong here. Many of these people would have been in a state hospital years ago. "'

Mentally ill offenders are often inextricably trapped in a "revolving door" of petty crime, incarceration, release, homelessness, and reimprisonment.' According to NAMI, "Today, at least 7% of all jail inmates and 14% of all prison inmates suffer from schizophrenia, bipolar disorder, or major depression. On any given day, there are roughly 210,000 persons with severe mental illnesses incarcerated in federal and state jails and prisons."6 Furthermore, about 40-50% of the estimated two million homeless Americans-often an "invisible" and abandoned element of society-are severely mentally disordered. In contrast, only

25 % of the nation's mentally ill (about seventy thousand people) currently reside in public psychiatric hospitals!

Thus, crowded jails and prisons are often utilized by society as "surrogate mental hospitals" to house nonviolent mentally ill offenders and the distraught homeless, convicted of nuisance crimes such as "urinating in alleys, sleeping at airports, [or] harassing people in front of convenience stores."9 Ostensibly this situation has occurred as a backlash resulting from nationwide attempts to remove mental patients from institutionalization.' More insidiously, Reagan Administration cutbacks resulting in loss of Supplemental-Social-Security-Income benefits have contributed to the homelessness dilemma. " Jails have been criticized as

being "high-expense facilities that deal with . . . social problems." For example, one California county jail reported 250,000 new bookings and service of 21 million meals each year because local government was purportedly "overwhelmed with [the] unmet needs of the poor and mentally ill." 2 Senator Mike DeWine maintains, "law enforcement agencies and correctional facilities simply do not have the means, or the expertise, to properly treat mentally ill inmates. "13

The United States Department of Justice reported that the nationwide cost for housing a prisoner in a state correctional facility is about $20,100 per year, or about $55 per day. Similarly, the cost of incarceration for federal inmates was estimated at $23,500 per year." These per capita expenditures can rapidly approach astronomical figures-in 1996, annual state and federal prison expenditures were $22 billion and $2.5 billion respectively. 15 Regarding the composition of prisoners in correctional facilities, a recent 1999 United States Department of Justice statistical report revealed that "[a]bout 10% of prison and jail inmates reported a mental or emotional condition," amounting to about 250,000 inmates nationwide. 16 Some view the incarceration of the mentally ill as a societal injustice-a judge presiding over hearings involving misdemeanor mentally ill defendants has stated, "[t]hese inmates should be in treatment, not in and out of jail.""

Furthermore, the personal impact of imprisonment on the lives of the disenfranchised, politically powerless, and often "invisible" mentally disordered offenders may be devastating." NAMI reports that

"conditions in jails and prisons are often terrifying for people with severe mental illnesses. These settings are not conducive to effectively treating people with these brain disorders. Many correctional facilities do not have qualified mental health professionals on staff to recognize and respond to the needs of inmates experiencing severe psychiatric symptoms. Correctional facilities frequently respond to psychotic inmates by punishing them or placing them in physical restraints or isolation cells, responses that may exacerbate rather than alleviate their symptoms. Inmates with severe mental illnesses usually do not have access to newer, state-of-the-art . . . drugs because of the costs of such medications. Federal and state prisons generally do not have adequate rehabilitative services available to inmates with severe mental illnesses to aid them in their transition back to communities. '9

This article explores the establishment of mental health courts (MHCTs) as a partial solution to the perplexing societal problem that relegates mentally ill offenders to a "revolving door" existence, in and out of prisons and jails. 20 This inescapable situation results from a paucity of effective humanitarian policies, laws and procedures for treating such medically disordered defendants. Establishment of mental health specialty courts is investigated as a potential means of addressing complex legal issues and psycho-sociological problems faced by the judicial system in dealing with cases of mentally ill offenders.

Part II discusses basic principles of therapeutic jurisprudence and preventative law, two critical concepts that are applicable to just adjudication of cases involving mental health law. Part III briefly chronicles the historical currents of underlying policies and the misguided, stereotypical attitudes that have engendered laws unfavorable to the just treatment of mentally ill offenders. Part IV examines the success of state and federal specialty courts in focusing upon and resolving unique problems similar to those faced in mental health issues. Two state specialty courts-drug and family courts-will be examined as examples of workable models from which to construct a corresponding MHCT system.

Part V examines advocacy of the establishment of MHCTs with a discussion of the following topics: considerations of the general need for such specialized state courts; evaluation of the effectiveness of court reform; the unique qualifications and role of the MHCT judge; the

promotion of a cooperative, non-adversarial justice system within the MHCT system; a mentally ill defendant's initial exposure to court hearings, including interactions with defense and prosecution attorneys, psychiatric medical experts, and other staff; establishment of a treatment plan with objectives for a "client's" Zl rehabilitation back to the social community; and contingency plan management for potential relapses among clients.

Part VI presents a proscriptive MHCT action plan to enable states, courts, hospitals, correctional facilities, national support organizations, community service organizations, and others to reduce societal costs through treatment and rehabilitation of mentally ill offenders. This action plan includes the following: projected financial savings to the community resulting from the implementation of specialized MHCTs; the predicted impact of MHCTs in reducing criminal recidivism rates; the visible role of MHCT judges in the news media as advocates of the treatment of mental illness as a disease; support for the concomitant passage of laws promoting treatment of mentally ill offenders and their rehabilitation into productive society; and model legislation for the establishment of pilot state MHCTs." Recent Congressional and state proposed legislation are discussed, including the creation of a federal MHCT program, entitled America's Law Enforcement and Mental Health Project, under H.R. 2594 and S. 1965.23

Finally, Part VII concludes with a return to fundamental therapeutic jurisprudence and preventative law principles underlying the advocacy of the establishment of state MHCTs, with Appendix A presenting a proposed "Mental Health Court Diversion Act."

II. The Concept of Therapeutic Jurisprudence and Preventative Law as Applied to Mental Health Law

Professor David B. Wexler has been a pioneer in promoting the general concept of therapeutic jurisprudence-a doctrine that is invaluable in the constructive analysis of society's role in the adjudication and treatment of mentally ill offenders. He states:

Therapeutic justice is the study of the role of the law as a therapeutic agent. It looks at the law as a social force that, like

it or not, may produce therapeutic or anti-therapeutic consequences. Such consequences may flow from substantive rules, legal procedures, or from the behavior of legal actors (lawyers or judges).24

The theory of therapeutic jurisprudence maintains that the law asserts either beneficial (therapeutic) or detrimental (anti-therapeutic) psychological consequences upon individuals25 that are often minimized by the legal community.26 Concerned judges, attorneys, law enforcement personnel, hospital administrators, and members of the psychiatric and medical communities possess a humanitarian responsibility to fully analyze and comprehend potential therapeutic and anti-therapeutic consequences of the law." These various decision-makers-knowingly or not-participate in molding the application of legal rules and procedures to make such rules either more beneficial or detrimental to the treatment of the impacted individuals.28

Closely related to therapeutic jurisprudence is the concept of preventative law.29 Advocates of this doctrine support the objective of obtaining just resolution of cases through non-adversarial means. Proponents of both preventative law and therapeutic jurisprudence note that reliance upon the American adversarial system for justice may sometimes yield unsatisfactory results.3 Our contentious culture often promulgates an attitude that "litigation is war." According to one critical observation, "the American legal system is a prime example of trying to solve problems by pitting two sides against each other and letting them slug it out in public."" Commentators denigrate the "psychological

brutality of the adversary system,"32 leading advocates of preventative law to maintain that attorneys and judges possess the opportunity to make major societal contributions by preventing or circumventing costly, acrimonious litigation, 33 which often upsets the defendant's psyche, depletes financial resources, and prolongs judicial resolution of matters." As the critics claim, "the ultimate price [of our adversarial system] is paid by human beings in personal suffering.""

Supporters of both therapeutic jurisprudence and preventative law recognize a common objective in promoting the psychological health of clients involved in the legal process, minimizing the detrimental effects of the law.36 Stolle suggests that "[i]f more than one legal tool is available to achieve the [client's] intent, the role of the integrated framework is to choose the most therapeutic, or, at minimum, the least anti-therapeutic alternative."37 Lawyers, whether in private practice or public service, have the unique opportunity to become "helping professionals," working to preserve the psychological well-being of clients, consistent with notions of fairness and justice." Judge Re comments:

A good lawyer must be more than a passionate advocate for a specific client and must consider more than merely the specific case or issue presented. In the role of counselor, whose goal is the prevention of litigation and the settlement of disputes, lawyers fulfill their classic role as healers and peacemakers rather than promoters of litigation and strife.39

Rather than giving attorneys, judges, and other legal actors a novel role, therapeutic jurisprudence and preventative law have provided, "merely a sharper conceptualization of and focus on work that a number of us . . . had been engaged in earlier."' Since existing codes of professional responsibility for attorneys and judges lack a specifically

defined role in representation of mentally ill clients, this "sharpened focus" of legal professionals necessarily fills a gap in the law."

Applying therapeutic justice principles to legal practice concerning the mentally ill, the MacArthur Network on Mental Health and the Law reported that its research revealed a high correlation between patient perceptions of coercion in the mental hospital admission process (e.g., in civil commitment) and patient views of provided procedural justice.42 A significant finding of the MacArthur study was that clients who are given baseline procedural justice in civil commitment proceedings feel an absence of coercion if judges, attorneys, clinicians, law enforcement, and ancillary staff also are perceived to have benevolent intentions, treating clients with dignity, compassion, fairness, and respect. 43 Sometimes, seemingly inconsequential courtroom conduct, such as a judge's permission for a patient to appear in court in business dress rather than a hospital gown or prison garb, may prove significant in preserving a client's dignity, which may correspondingly impact treatment outcome." The MacArthur study on coercion among mental health clients in the judicial system validates principles of cognitive and social psychology that indicate the diametrically opposed positive or negative consequences of choice and coercion.45 Research suggests that mentally ill offenders who freely choose to obtain treatment rather than being treated against their will may be more committed to treatment objectives, thus benefiting more

consistently from it.46 Alexander Greer's study reports that angry, sad, displeased, or confused patients who feel "coerced by the [civil commitment] process . . . may [adversely] affect the course and conduct of their [own] treatment in the hospital."47 However, further scientific investigation is necessary to determine if these general principles also apply to clients with severe mental illness.

Thus, therapeutic jurisprudence and preventative law principles may provide a constructive contextual framework in which to implement the formation of specialized mental health courts. Within this theoretical structure, judges, attorneys, medical experts, hospital administrators, law enforcement personnel, and other legal system participants necessarily focus upon the maximization of the therapeutic consequences upon individuals through application of substantive and procedural rules.

III. Historical Background Surrounding Policy and Laws Affecting the Mentally III

A. The Historic Case of Miss Louisa Nottidge

In 1849, the Lord Chief Baron of the Court of the Exchequer and a special jury heard the historic case of Nottidge v. Ripley,48 which has been immortalized as a harbinger of changes in legal policy concerning the mentally ill.49 In this case, the judge awarded Louisa fifty pounds and court costs against two of her family members for wrongfully imprisoning her in an insane asylum.' At trial, it was revealed that, upon her father's death, Louisa and her spinster sisters became captivated with an amoral religious cult led by a man named "Prince."" The four women moved to the remote "Abode of Love," a country house for Prince's Lampeter Bretheren religious cult. Three of the sisters lost their worldly possessions in marriages to penniless men of the sect. Louisa lived for six weeks in the cult, "dazzled by its luxury, charmed with its games and pastimes, and sustained by glorious assurances of judgment being past, and heaven to come."52

Louisa's mother was shocked and appalled at her daughter's life of degradation and debauchery in the cult, and she sent Louisa's brother and brother-in-law to rescue Louisa from a life of sin. The two men physically dragged her from the house, screaming and struggling.53 Louisa's family then recruited medical doctors to deem her mentally delusional and insane, simply because of her immorality and financially irresponsible lifestyle. Louisa was then committed to Dr. Stillwell's madhouse, where she was confined for over a year. In the insane asylum, Louisa's delusions continued with thoughts that Prince was "God manifest in the flesh" and that she was immortal and would be soon "taken up to heaven in the twinkling of an eye. " She was diagnosed as a religious fanatic. Still under the cult's hypnotic influence, upon one brief escape from the asylum, Louisa returned to the "Abode of Love," transferring all her life savings to Prince,sa

While medical experts testified that Louisa was insane and should be recommitted to a mental institution, the sage Lord Chief Baron disagreed. 55 In a key victory for mental health patients, the judge radically instructed the jury, "It is my opinion that you ought to liberate every person who is not dangerous to himself or others . . . and I desire to impress that opinion with as much force as I can."" The Times newspaper noted the court's explicit underlying policy: "We must not stretch a harmless hallucination into legal insanity . . . . The shades and gradations of error and folly are so insensibly blended that we could not incarcerate and coerce such [a] . . . one without danger to others."57 Thus, public awareness was brought to the plight of improperly committed sane persons, like Louisa Nottidge, to mad houses of the nineteenth century.se

John Conolly, renowned psychiatric commentator of his time, astutely noted:

If the liberty of an insane person is inconsistent with the safety of his property or the property of others; or with his preservation from disgraceful scenes and exposures; or with the tranquility of his family, or his neighbors, or society;-if his sensuality, his disregard of cleanliness and decency, make him offensive in private and public, dishonouring and injuring his children and his name;-if his excessive eccentricity or extreme feebleness of mind subject him to continual imposition, and to ridicule, abuse, and persecution in the streets, and to frequent accidents at home and abroad;-his protection and that of

society demands that he should be kept in a quiet and secluded residence, guarded by watchful attendants and not exposed to the public.59

Conolly maintained that some men and women lacked societal homeostatic mechanisms keeping them in conformity with the orderly day-to-day workings of society, and thus should be sequestered in supportive therapeutic environments. 60 Accordingly, out-of-control persons who exhibit public explosions of anger, lack of personal hygiene, drunkenness, or other conduct disruptive to the smooth functioning of society should be placed in protective treatment facilities." Conolly advocated sequestering of these individuals, commenting that "[p]eople of this kind may not endanger their lives or those of others, but their being at large is inconsistent with the comfort of society, and their own welfare. "62

Transition into the Twentieth Century

As England and the United States entered the twentieth century, the mentally ill were assigned to treatment facilities (e.g., mental institutions), consistent with suggestions of Conolly and other reformers. This policy was reflected by enactment of laws enforced in courts that generally permitted psychiatrists to delineate the fine dividing line between sanity and insanity.63 Yet, in the 1950s, studies showed that public attitudes towards the mentally ill remained unenlightened, with most American citizens espousing the irrational, stereotypical viewpoint that mentally ill persons were unpredictable, threatening, and potentially violent. ' Dr. Shirley Star of the National Opinion Research Centre, University of Chicago, discovered that the general public's reaction to the

mentally ill was to view such persons with "fear, distrust, suspicion, and apprehension derived primarily from the assumption that the person could not really be cured. ,65

Similarly, the Joint Commission on Mental Illness and Health, founded in 1955, published a report concluding that American society tended to place negative stereotypical labels upon the mentally ill, often punishing them for their illness.' As a consequence of these views, in the mid-1950s, it was estimated "there were approximately 565,000 people with severe mental illnesses in state psychiatric hospitals." Hospital institutional conditions were deplorable, as depicted in the film classic, One Flew Over the Cuckoo's Nest.' In 1955, the use of mental hospitals was so prevalent that the number of patients-estimated at 819,000-exceeded the number of inmates incarcerated in prisons. be Newspaper reporters and social commentators published accounts of the horrifying conditions at mental institutions, called "snake pits," in the early 1950s.69 Overcrowded and deteriorating buildings were viewed as fostering mental deterioration and dependency among clients. 70 The courts responded by striking down state commitment statutes as unconstitutional in authorizing involuntary hospitalization of the mentally ill who were not dangerous. 71 Moreover, excessive periods of involuntary commitment and detention were held to interfere with a patient's constitutional right to jury trial.72

Court intervention led to reduction of the average duration of hospitalization and state institutional closings by officials in the 1960s and

1970s.73 Yet, even after civil liberty reforms, involuntarily committed patients in state hospitals consisted primarily of the poverty-stricken and uneducated who lack socioeconomic resources sufficient to provide them with less drastic alternatives. However, promised community replacement mental health centers "never materialized," forcing America's homeless mentally ill into the streets or correctional institutions.7 Dr. Fuller Torrey states, "In effect, approximately 92 percent of the people who would have been living in public psychiatric hospitals in 1955 were not living there in 1994 . . . . [A]pproximately 763,391 severely mentally ill people . . . are living in the community today who would have been hospitalized 40 years ago."76 Similarly, the Oregon Task Force on Civil Commitment reported that investigators found community resources were lacking, preventing diversion of clients from involuntary civil commitment into treatment.77 During the 1980s, the number of homeless citizens needing food, shelter, and clothing grew rapidly, with a large percentage of them suffering from mental disorders.78 The American Psychiatric Association's Task Force on the Homeless Mentally Ill reported that the increase in homeless mentally disordered populations was caused by societal failures in implementing deinstitutionalization community-based substitutes.' 79 Current estimates are that approximately 40-50% of the homeless are seriously mentally ill, with half suffering from treatable schizophrenia." While the 1990 United States Census noted that approximately 230,000 citizens were homelesswith 180,000 residing in shelters and 50,000 living on the streets-the Census Bureau considers these numbers low, with more reliable estimates

counting in excess of 500,000-and perhaps as many as 2,000,000 or more-homeless Americans.81

In the 1990s, studies investigated the continued irrational public fear of mentally ill offenders, lack of public sympathy, and societal rejection that may interfere with assimilation back into the community.82 For example, in 1998 Dr. Bruce Link commented, "To date, nearly every modern study indicates that public fears are way out of proportion to the empirical reality. The magnitude of the violence risk associated with mental illness is comparable to that associated with age, educational attainment and gender [for these offenders]."83 Misguided public opinion has resulted in laws and social policies that are detrimental to the wellbeing of mentally ill offenders, leading to often inescapable imprisionment and homelessness rather than to provision of humane diagnosis, treatment, and rehabilitation.

2. Current Laws and Policies Concerning Imprisonment, Commitment and Treatment of Mentally Ill Offenders

This section will provide a brief overview of current laws and social policies concerning the imprisonment, commitment and treatment of mentally ill offenders.

a. The United States Department of Justice Bureau of Justice Statistics on Incarcerated Mentally Ill Offenders

The United States Department of Justice's recent survey revealed that about 10% of prison and jail inmates reported a mental or emotional condition. Ten percent of these mentally ill offenders indicated they stayed overnight in a mental hospital or program. In 1998, an estimated

283,800 mentally ill patients were incarcerated in the Nation's prisons or jails. 4 Mentally ill inmates comprised 16% of currently incarcerated state prisoners, 7% of federal inmates, and 16% of those housed in local jails. For offenders released on probation, another 16% (estimated at 587,800 former inmates) had either been treated for mental illness or stayed overnight in a mental hospital at some time in their lives.85 The U.S. Department of Justice Statistics reported in 1996 that over 33% of jail inmates reported a physical or mental disability, with one in ten jail prisoners reporting a mental or emotional illness. 86 For many of the mentally ill, incarceration may lead to victimization by rape and physical assault, solitary confinement for violation of rules they are incapable of fathoming, neglect of medical problems, or even suicide. 87 On Good Morning America, Dr. Milton Miller commented, "To be in jail is a miserable, horrible experience. It's full of shame, it's full of defeat, it's full of hopelessness, it's scary. It would have to be 10 times more difficult for mentally ill offenders than for those without phobias, depression, schizophrenia, or other disorders."88

Mentally ill offenders, as a class, reported high rates of homelessness, unemployment, alcohol or drug use, and either physical or sexual abuse prior to their recent term of imprisonment.89 NAMI estimates that "25 to 40 percent of America's mentally ill will come into contact with the criminal justice system."' Dr. E. Fuller Torrey of the National Institute of Mental Health noted that most "seriously mentally ill individuals who end up in jail have been charged with relatively minor offenses," primarily for "assault, theft for property or services, disorderly conduct, alcohol or drug-related charges, and trespassing."9" He adds, "Common forms of theft for seriously mentally ill individuals are shoplifting and failing to pay for restaurant meals (`dine and dash')."' Some ordinances allow arrests of the homeless for loitering or panhandling.93 Perhaps surprisingly, it has been reported that as high as "29% of jails sometimes incarcerate mentally ill persons against whom no criminal charges were filed."' The cost of incarcerating mentally ill offenders is exorbitantly high. In 1996, the Bureau of Justice Statistics reported that national spending was $22 billion for state prisons and another $2.5 billion for federal prisons, for a total annual expenditure of $24.5 billion.95

Almost half of the states reported per capita correctional facility costs for incarcerating prisoners to be between $20,000 and $30,000 per year.96 Expenditures included costs of operations; employee wages, salary and benefits; food service; medical care; transportation; land and building purchases; utilities; and building construction, renovation, and repair. With the prohibitively high costs of incarcerating the mentally ill offender, advocates of therapeutic justice and preventative law question whether rehabilitation and treatment might not reduce economic costs to

society with this class of offenders. Part III of this article will probe justifications for these viewpoints in some detail.

b. Overview and Assessment of Current Court Criminal Proceedings in Adjudication of Mentally III Offenders

A summary of current court proceedings will be presented in the adjudication of mentally ill offenders. Below, I will discuss the initial court civil commitment and recommitment procedures commonly employed in generalist trial courts, and protection of the constitutional rights of mentally ill offenders to treatment.

1) Initial Court Civil Commitment Decisions in Generalist Trial Courts

This section will provide a brief capsule view of currently existing procedures-often implemented in traditional "generalist" state or federal trial courts-for initial court commitment or recommitment procedures and corresponding treatment of mentally ill offenders.9' A fundamental principle in criminal proceedings is that a defendant, even one that possesses a mentally disorder, is innocent unless proved guilty, with the burden of proof upon the State to prove each and every element of the crime beyond a reasonable doubt. However, under both state and federal laws, the insanity defense must be affirmatively asserted and proved by the defendant." Commitment laws generally require both a finding of mental illness and dangerousness resulting from that mental illness.99 The judge, with broad discretionary powers, possesses enormous responsibility to ensure protection of a defendant's constitutional substantive and procedural due process rights, before depriving the defendant of his liberty."

Courts also have upheld state statutes requiring a defendant's immediate hospitalization following an insanity defense."' After finding a defendant not guilty by reason of insanity, courts generally schedule a hearing within approximately sixty days to determine the need for hospitalization. Prior to the hearing, the defendant may be hospitalized. Similarly, defendants found incompetent to stand trial may be held involuntarily for evaluation. 102 In justifying these decisions, courts often find that the protection of public safety outweighs a brief deprivation of the individual's liberty, giving psychiatric staff the reasonable opportunity to assess the defendant's mental illness and predilection for recidivism (e.g., violence). Similarly, most states provide for emergency commitment of individuals who are "reasonably believed to be imminently dangerous to himself or others." 103 After O'Connor v. Donaldson,"" state laws have been instituted that require a hearing within three to five days after emergency confinement, in order to ensure that confinement has met constitutional requirements."'

Historically, individual liberty interests of mentally ill offenders were more highly valued than they are today, since finite time limits were placed on involuntary commitment terms. More recently, courts have extended the maximum periods of time that these offenders can be confined against their will for treatment. 106 Thus, in Jones v. United States, the Supreme Court upheld controversial legislation permitting

insanity acquittees to be involuntarily committed and hospitalized indefinitely beyond their imprisonment term. Similarly, in Kansas v. Hendricks,'8 the Supreme Court upheld the Kansas state law establishing involuntary civil commitment procedures for mentally ill offenders classified as sexually violent predators (SVPs). Critics of state SVP acts based upon the Hendricks rationale" vehemently argue that these statutes interfere with a mentally ill person's constitutionally guaranteed liberty rights and utilize overly vague criteria, which foster indeterminate commitments of sexual offenders to potentially unjust lifetime terms.

In contrast to SVP cases, Congress and several states have limited involuntary commitment for other offenses to a period of time equal to a mentally ill offenders' maximum term if the offender was found either not guilty by reason of insanity or incompetent to stand trial."' While most courts have upheld these laws,"' some courts have interpreted the statutes to permit extended and sometimes indeterminate periods of commitment. 11 With such enacted statutes, the risk of unnecessarily prolonged involuntary commitment is high, unless periodically monitored by the judiciary in regularly scheduled court hearings. "'

2) Protection of the Constitutional Rights of Mentally Ill Offenders to Medical Treatment

In Youngberg v. Romeo,"' the Supreme Court cautiously recognized the constitutional rights of involuntarily hospitalized patients to "minimally adequate" rehabilitation, training, treatment, freedom from undue restraint, and the basic necessities of life. Following Youngberg, other state courts have examined the care provided to mentally ill offenders in state institutions to ensure that substantial professional medical judgment was rendered prior to commitment. "' Critics note that Youngberg's "substantial professional judgment" standard may prevent inquiry into the adequacy of treatment, halt civil rights litigation, and abandon therapeutic jurisprudential values. 116 However, the Americans with Disabilities Act (ADA) has recently been hailed as the most extensive governmental effort to correct problems of discrimination against mentally and physically disabled Americans in history."' Thus, Justice Scalia pronounced in Pennsylvania Department of Corrections v. Yeskey" that prisoners are allowed to maintain suits against the state department of corrections for discriminatory action under the ADA on the basis of disability. Further extending rights of the mentally ill, the Supreme Court, in Olmstead v. L. C., 119 found that institutionalized citizens with mental disabilities were entitled to ADA-mandated treatment in an "integrated community setting" in preference to the "unnecessarily segregated" conditions in Georgia State Hospital. This decision was consistent with Congress's goal "to eliminate the segregation of individuals with disabilities. ,120

Courts also have recognized a non-sentenced mentally ill defendant's right to treatment after being found to be either a sexual offender or not

guilty by reason of insanity.'2' This right to treatment is derived from the Fourteenth Amendment guarantee of no deprivation of life, liberty, or property without due process of law."' Similarly, for sentenced mentally disordered prison inmates, the Eighth Amendment-assuring freedom from cruel and unusual punishment-gives inmates the right to treatment, 123 including access to psychological or psychiatric services when medically necessary. Judges also may require that correctional facility treatment plans are implemented to ensure the following: that inmates take their prescribed medications, that therapeutic drug blood levels are assessed, that patient requests for medical services are timely handled, that medications are not discontinued without client interviews, that psychiatric decisions are not ignored by non-medical personnel, that individual and group therapy are provided, and that regular monitoring of treatment is instituted.124

Furthermore, a court may require that states provide the following constitutional protections for mentally disordered inmates in correctional settings: adequate systems for identifying and monitoring mentally ill patients through the presence of documented intake procedures; referral rules for ensuring inmates may make their medical needs known to staff; communication procedures that guarantee mental health staff regular access to mentally ill offenders; and promulgation of rules that

specifically pertain to management and care of the special problems of mentally ill inmates."

Judges may periodically monitor correctional facility environments to ensure that conditions of incarceration are conducive to the treatment objectives of mentally ill inmates. 16 Understandably, courts generally have rejected lack of available funding, overcrowding, a need for prison security alone, or even good faith efforts to obtain treatment resources as justifiable excuses for allowing correctional facilities to withhold necessary diagnosis and treatment from mentally ill inmates. 27

IV. Successful State Specialty Court Experiences

Ongoing nationwide discussion of the benefits of state specialty subject matter courts has resulted in the successful formation of adult drug courts, "' family courts, "' juvenile drug courts, 130 teen courts, 131

domestic violence courts,' and business courts. 13 Since the state judiciaries historically have had greater experiences with family and drug state specialty courts than with mental health specialty court counterparts, these two courts will be introduced in this section as two potential foundational models for establishment of more novel mental health specialty courts."34

A. State Drug Courts

State drug courts were instituted as part of a nationwide program known in the media as the "War on Drugs," a term popular in the 1980s to describe governmental responses to America's drug crisis. Alarmingly, statistics revealed that although the United States possessed only 4.5% of the global population, 60% of illegal drugs were consumed and sold here. "35 Notwithstanding an acknowledged link between drugs and crime, the federal government and drug courts recognized that it was more cost effective to direct nonviolent drug offenders towards treatment programs, with a goal of reintegrating treated drug addicts back into society. 136 Drug courts were created "out of a sense of frustration that law enforcement and imprisonment policies were not having the impact on drug supply or demand that proponents of the war against drugs of the 1980s had hoped for."137 These courts have received tremendous public support, and there are over 425 drug courts in operation in the United States today. 138

For example, the United States government's initial response in its War on Drugs was to invest considerable financial resources primarily in law enforcement arrests and imprisonment of offenders. At first glance, this approach appeared successful in controlling drug crimes, with an investment of $1.5 billion in 1981, expanding to $13.1 billion in 1995.'39 As a direct result of these expenditures, over 1,000,000 drug arrests were made for drug-related violations in 1993, compared to less than 700,000 in 1983. 40 Yet, imprisonment of drug offenders has unexpectedly contributed to overcrowding the prison system,"' with the federal system operating at 125% of capacity. Forty-one state systems operate at or above capacity. " As a direct result of state prison overcrowding, inmates are often transferred to local jails. 143 In accepting inmate transfers, state jails often must release previously held offenders, or reduce incarceration rates of minor offenders, with unavoidable adverse repercussions.

Unfortunately, imprisonment of drug offenders-while resulting in doubling of arrests-has not reduced the incidence of drug-related crime." For example, from 1980 to 1990, California's prison population grew by 450%, with no significant impact on number of crimes committed. 145 While incarceration temporarily deters the imprisoned inmate from recommitting a drug-related offense, statistics show that untreated drug addicts support their habit upon release by committing an enormous number of crimes such as robbery, assault, burglary, auto theft, and shoplifting.14 In fact, one commentator noted that "[w]ithout treatment, 90% of incarcerated drug offenders will renew a career of addiction and crime within three years of release . . . ."147 Since American losses in the War on Drugs have cost over $300 billion to date,

148 without major impact on the incidence of drug-related crime, the treatment of drug abusers has been advocated as a logical cost-effective alternative to be explored."49

Moreover, prison drug rehabilitation programs-in themselves-have lacked the intensity of treatment required for success, with a token "few hours per week" deemed to be grossly inadequate.) In addition, there has been a deficit of commitment of financial resources to prison treatment programs commensurate with the massive flood of drug offenders into correctional facilities. 15 Thus, in the 1980s, states experimented with the concept of drug courts as a means of managing the increasing number of drug abuse cases with the recognized need for placing offenders in effective drug treatment programs. 152 Drug courts promoted a reduction of financial and societal costs of incarceration through monitoring of nonviolent drug abusers. Rehabilitation was predicted to result in lowered recidivism or reconviction crime rates for these offenders, with reduced court caseloads and correctional facility costs. 153

A primary goal of drug courts has been the monitoring of appropriate treatment and rehabilitation for drug abusers to accelerate their recovery as productive members of society. 254 With successful completion of an individual's treatment, the drug court possesses the judicial authority to dismiss or mitigate charges and sentences as added motivation for addicts to comply with treatment programs.' The net result has been that drug tribunals have successfully reduced the incidence of drug abuse re

offenses, lowered drug-related criminal activity, diminished the number of prisoners incarcerated in prisons and jails, reduced court caseloads, and obtained considerable cost reductions throughout the criminal justice system. 156

B. State Family Courts

State family courts first originated in the United States at the turn of the nineteenth century, about the same time as juvenile courts, but long before drug courts. 117 Like the drug courts, the family courts were designed to create a nontraditional, non-adversarial tribunal that would resolve a family's legal issues efficiently and quickly, with a minimum of trauma to children and families in crisis. 158 As a result of relatively recent support by the American public, specialized family courts or divisions are now used in diverse forms throughout several states. In 1996, the American Bar Association (ABA) funded a two-year project designed to facilitate establishment of unified family courts in six cities,"9 with a recent conference of bar presidents advocating these courts."

At present, five states utilize a separate family court for hearing family law cases, 161 with five other states employing a separate trial division for these matters,162 and one state possessing a family department within the trial court."63 Fourteen states use geographical restrictions on family courts or court divisions to handle cases in different parts of their respective states, 16 and nine other states plan to experiment with family court programs. "65 Michigan and Virginia have received legislative

approval to establish these courts," leaving seventeen states that continue to handle family law cases within general trial court proceedings.

A judge's term within a family court may vary significantly. While some states family court judges with appointments for life,167 other states permit temporary judicial assignments of more limited duration, leading some detractors to maintain that these rotating judges may possess less knowledge of this specialized area of law than necessary for the just and efficient adjudication of cases."68

Criticisms of the traditional trial court forum include the following: 1) family matters are often burdensomely expensive and time consuming with some disputes being tried more than once or before different judgeor even court-in a fragmented rather than unified approach; 2) children may be inadvertently subjected to trauma in a given dispute; 3) judges hearing family law cases may lack interest, understanding, or temperament to hear these cases, and 4) courts inadequately address needs of the poor who lack financial resources to hire an attorney and must represent themselves. 69 Court reform has resulted in the satisfactory establishment of state family courts that have specifically overcome the disadvantages of traditional trial court forums. Thus, both family and drug specialty courts provide successful foundational models on which to build the bases of future MHCTs.

V. Creating an Exemplary Working Model of Novel Mental Health Specialty Courts

Although there has been a paucity of published information available on operations among the handful of newly established state MHCTs in the United States, 270 more detailed information regarding functioning of specialized courts has been obtained in the context of the previously introduced drug and family courts. News analysts have noted that recently established MHCTs have been "loosely modeled" after drug courts, or other specialty courts. "' However, Judge Harold E. Shabo, Supervising Judge of the Los Angeles County MHCT, referred to as

"Department 95,"172 and associated Los Angeles County court staff have provided invaluable information regarding the operation of this California court, the oldest and most established existing independent MHCT in the United States. 173 Recently, Judge Ginger Lerner-Wren of Florida's Broward County MHCT has received prominent news media coverage for pioneering what has been publicized as another "one-of-a-kind court" designed to "steers nonviolent mentally ill defendants into care rather than jail. "17' The Florida MHCT now hears about 450 cases annually. 175 Thus, this discussion of advocacy of the establishment of mental health specialty courts necessarily will rely heavily upon analogy to existing state specialty courts (e.g., family and drug) and to supplemental information derived from the Los Angeles and Broward County MHCT experiences.

A. The General Need for Specialized State Courts Such as MHCTs

Court reformers often justify the compelling need to establish specialized courts by noting "it is clear that in almost every field of endeavor and in every profession, the need to master a body of knowledge and to gain experience in working with that body of knowledge has created a narrower focus over time for those who work within more broadly defined fields."176 At times, society has criticized specialized judges as being less adaptable and perhaps less qualified than

generalist judges.177 However, this criticism is generally unfounded, and the specialist judges' knowledge of the depth and complexity of difficult areas of law makes them uniquely trained and qualified to resolve these issues efficiently and judiciously.

Permanent assignments of judges to specialty courts (e.g., family courts or MHCTs), rather than utilization of temporary rotating generalist judges in these courts,"' permits specialist judges to master the nuances of a complex body of law. 179 When judges "see the same issues repeatedly and thus have both the time and the motivation to do the research and thinking needed to resolve them accurately,"18 cases may be more rightly decided. A specialized MHCT judge may avoid criticisms of an overly myopic focus by keeping lines of communication open with generalist colleagues, who may provide more panoramic viewpoints.' Specialist judges must be vigilant in guarding against any possible personal tendency to de-emphasize due process rights of litigants because of an insensitivity to a client's rights to his day in court or to give potentially inflexible responses to some parties who may repeatedly appear before the court. 182 Specialist judges also should guard against even the appearance of unfairness by ensuring that constitutional rights of defendants are constantly monitored and preserved in all judicial proceedings.

B. General Evaluation of the Effectiveness of Court Reform

Professor Rochelle Dreyfuss notes that the effectiveness of court reform, such as the establishment of novel state MHCTs, may be difficult to evaluate: 183

One can measure the success of a court in a variety of ways. Objective factors, such as the court's docket-clearing rate, or the number of litigants choosing the court rather than other tribunals with comparable adjudicatory authority form one

standard. Subjective measures include the satisfaction that litigants express in the adjudication they received, the regard with which the court is held among lawyers, academics and judges; and the degree to which the citizens of the jurisdiction and those who consume the law the court administers accept the court's output.114

A specialty court's success may be measured by examining the quality of decision-making, judicial efficiency, and retention of due process rights."85 Decision-making quality may be assessed objectively by determining whether the court in question is consistent and accurate in its decisions, including policy determinations, when the facts and law of cases reflect similar circumstances.' Judicial efficiency and economy may be evaluated by such factors as the length of time of litigation, with considerations for the number of judges and court appearances required for case resolution."' Due process requirements may be monitored to determine whether proper notice, opportunity to be heard, and a neutral adjudicator are provided."' Finally, objective public opinion polls may be taken to assess whether the court is viewed as achieving societal objective, meeting the therapeutic needs of mentally disordered offenders, and being held in high esteem by lawyers, academics, and members of the judiciary.

C. Critical Role of the Mental Health Court (MHCT) Judge

In the ABA Journal, Debra Baker described the plight of mental health offender, Tracey Harris, a misdemeanant charged with loitering in front of a convenience store near his group home residence.'89 Tracey entered Judge Ginger Lerner-Wren's Florida mental health courtroom one day, "fighting off the sheriff's escort who had a firm grip on his arm," and stopping suddenly upon noticing the presence of his mother and social worker. With his head hung to the side and his words slurring, he held his shackled wrists out toward them and said, `Look what they've done to me. I'm in handcuffs. It's not right.'"" Debra Baker observed that generalist judges in state trial courts might easily view Tracey's conduct and agitation as threatening public safety and constituting contempt of court, warranting additional imprisonment in the county lockup."'

However, to a specialist MHCT judge, experienced in handling cases concerning nonviolent mentally ill clients charged with committing minor misdemeanor offenses, Tracey Harris's conduct is more comprehensible."92 Judge Lerner-Wren's patient questioning revealed that Harris's loitering was "not the result of a criminal mind but instead of his mental condition,""93 with no danger to public safety. Thus, continued treatment for Harris was justly ordered rather than imprisonment. Florida's Howard Finkelstein, a chief assistant public defender, commented, "Mentally ill people who commit misdemeanors shouldn't be in jail. It's not humane, it's not right, it's not cost-effective."" Judge Lerner-Wren observes that her MHCT operates under the rubric of the therapeutic jurisprudential concept that "the court could do more than just be a mere adjudicator of charges, but could actually take an active role in the treatment of people coming before it.""95

The MHCT judge must be uniquely qualified for this position of responsibility. The model MHCT judge should possess attributes of appropriate judicial temperament, compassion and sensitivity to the "client's" 196 therapeutic needs, tolerance for remission, knowledge of DSM-IV categories of mental illnesses and their treatment, ability to objectively assess the value of expert medical testimony 197 and the

scientific literature, complete understanding of medication effects, willingness to effect therapeutic change in law enforcement procedures, excellent interpersonal skills, willingness to represent the goals of therapeutic jurisprudence to the public, philosophical commitment to treatment and rehabilitative objectives, perceptiveness in recognizing preconceptions or biases in oneself and others, and be capable of efficiently supervising the monitoring of outcomes of court-mandated treatment plans.

For example, prior to serving on Broward County's MHCT, Judge Lerner-Wren possessed a background in mental health and disabilities law, working with indigent clients.' She also exhibited extraordinary "energy and zeal for the job,""99 even hearing additional MHCT cases on her lunch hour in court apart from her regularly scheduled court docket.? Task forces may screen for judges with practical experience in adjudicating cases involving indigent mentally ill or disabled clients"' to ensure that objectives of the MHCT in obtaining accurate patient diagnosis, adequate treatment, and rehabilitative services are met. Moreover, the MHCT judge should be willing and able to take a more active role in the regular management and monitoring of the mental health offender's case than his or her passive generalist trial court counterpart.

MHCT judges should exhibit sufficient fortitude to resist public pressure or political expediency in incarcerating the mentally ill. Lotus McClure, former Director of the Jail and Prison Committee of a local chapter of NAMI, says, "People want the mentally ill locked up. Judges think they're doing a public service by locking them up, but they really don't belong in jail. They belong in a psychiatric hospital."zoz NAMI supports the MHCT's mandate to divert mentally ill offenders from jails and prisons into clinical treatment programs with rehabilitation objectives. 203 According to a joint report of NAMI and the Public Citizen's Health Research Group, approximately one-third of jails surveyed housed seriously mentally ill individuals without any criminal charges filed against them, and most other jails held such persons on

minor charges consisting of "disorderly conduct, trespassing, and drunkenness. "204 Since more than one-fifth of jails lack even rudimentary mental health services, it is predictable that patients exhibit further deterioration with regularity, leading some inmates to commit suicide."5 Law enforcement, correctional facilities, hospitals, prosecutors, public defenders, and family members may refer such clients to the MHCT.206

Judges and governmental task forces who wish to establish a MHCT in their state may find it advisable to consider some of the following suggestions: begin with less complex misdemeanor cases with gradual transition to more complex felony cases; establish organized procedures for law enforcement and jail staff to recognize potential candidates for the MHCT;2? devise probationary and conditional release plans and criteria for release of offenders from institutional commitment; and implement an organized system for follow-up to ensure that mentally ill offenders are regularly re-assessed and monitored.2"

The Los Angeles County MHCT is divided into Departments 95, 95A, 95B, the Office of the Counselor in Mental Health and the Clerk's Office. All courts operate on a daily basis. Supervising Judge Shabo presides over Department 95, and two Bench Officers preside over Departments 95A and 95B. Judge Shabo hears a wide range of misdemeanor and felony cases involving such issues as a mentally disordered client's confinement in mental hospitals; the capacity to refuse treatment (e.g., medication and ECT);2 extensions of commitment; not guilty by reason of insanity (NGI) pleas; confinement of sexually violent predators (SVPs) in state mental hospitals; commitments for competency and narcotic addiction; and vagrancy or disturbing the peace. 20 In

addition, the court's caseload also includes proceedings for commitment of persons who are mentally retarded.

Two other Mental Health Bench Officers, referred to as "Commissioners," share the work of the court, which also includes establishing and monitoring patients on conditional release; commitment of persons with developmental disabilities to state hospitals; commitment of persons found incompetent to stand trial in criminal proceedings; and for California Youth Authority wards who "physically or mentally defective or dangerous." 21 These Bench Officers also may hold conservatorship hearings involving the appointment of a private party conservator or public guardian for decision-making responsibilities over treatment and residence for eligible clients."' Department 95A hears mainly LPS conservatorship cases and Riese hearings to provide temporary conservatorship for patients refusing psychiatric medications. Department 95B, created in January 1998, hears cases such as those concerning involuntary psychiatric hospitalization under the LPS law, Riese appeal hearings for defendants potentially lacking capacity to refuse medication, petitions by the District Attorney on 180 day postcertification to hold patients posing a risk of danger to others, and determination of whether confiscated weapons should be returned to defendants committed under the LPS law.

The Office of the Counselor in Mental Health assists the presiding judge in supporting courtroom operations. The Office performs this important court function by supervising the Clerk's Office; scheduling hearings on the court's calendar; managing case files and updating the case management database; filing Writs of Habeas Corpus including those for patients held at Certification Review hearings; conducting pre

commitment hearings for cases in which parents or legal guardians seek psychiatric treatment for minors; writing reports to the court for mentally disordered individuals who are involuntarily held, developmentally disabled, or in the age of minority and requesting release from psychiatric inpatient detention; and serving the community by providing educational training and written information regarding existing mental health laws and available resources, both legal and medical. 2"3 This Office also administers the filing of certifications and petitions for medication capacity, yielding over fifteen hundred Certification Review and Medication Capacity hearings per month in over fifty-five psychiatric treatment sites throughout Los Angeles County.

Jury trials are generally held at different Los Angeles Superior Court locations as well as in the Mental Health Department itself. Offices of the Public Defender, District Attorney, County Counsel, and Public Guardian are situated within the MHCT's facility. At times, prosecutors from other County sites may appear before the court. Ancillary MHCT personnel include a court manager, psychiatric expert witnesses, mental health counselors, social workers, court clerks, bailiffs/sheriffs, court reporters, law externs, and administrative and secretarial staff."'

D. The Mental Health Court's Promotion of a Cooperative, Nonadversarial Justice System

In contrast to most generalist state trial courts, which rely upon the time-honored adversarial system for ensuring justice, the MHCT judge facilitates largely non-adversarial court proceedings with an approach balanced between treatment and punishment. The judge elicits the participation of the prosecution, defense, correctional facilities, law enforcement, and treatment providers.TM In Los Angeles County, Judge Shabo, encourages a cooperative, rather than adversarial, environment among various legal and medical personnel, consistent with therapeutic jurisprudence and preventative law principles. 216 For example, Judge Shabo may patiently encourage withdrawn, medicated, or

uncommunicative clients to speak of their therapy needs or discomforting side effects, with regularly mandated physician progress reports, in order to ensure that patient treatment is appropriate and progressing without undue delay.

Surprisingly, clients who are unfamiliar with the cooperative modus operandi of MHCTs and "brainwashed" by courtroom antics in television or motion picture dramas (e.g., The Practice or A Few Good Men) may be dissatisfied with a lawyer's perceived "lackluster" courtroom performance. While some private attorneys may put on a "dog-and-ponyshow" for the uninformed defendant who mistakenly equates a "Perry Mason-style" adversarial approach with legal brilliance, an astute judge may find ways to indicate to both client and counsel that they may find established cooperative approaches more productive."'

E. Initial Court Hearings and Judicial Monitoring of Client Rehabilitation for Release Back to the Community

In a courthouse filled with sad stories, [those of the mentally ill] are among the saddest of all. Some are so mentally disordered that they cannot even make it into the courthouse. Waiting on benches outside Hammes' courtroom for their few minutes before the judge are some others: a white-haired old woman with a vacant stare living out her days in a nursing home, the angry man in the polyester plaid sport coat gripped by paranoid delusions, or the gifted artist forced to live in a locked facility because he is schizophrenic.zla

At a mentally ill defendant's initial hearings, the judge must evaluate the defendant's mental state to determine whether he or she is competent to understand charges against him or her. "9 Some mentally ill

defendants, such as the homeless and poverty-stricken, may be "disenfranchised" from society, exhibiting resistance to participation in the criminal justice system. zz" The client's defense attorney may be queried regarding the defendant's competence to stand trial.zzl The judge then determines whether the client should be provided psychiatric diagnosis, treatment, or other medically indicated services, perhaps as an integral part of the client's treatment plan."

The judge hears expert testimony by psychiatrists and psychologists to diagnose the defendant's mental condition and status (e.g., gravely disabled or dangerous). In cases of grave disability, the judge determines whether the patient is capable of providing oneself with basic necessities (e.g., food, clothing, shelter) or utilizing them if provided by others, zzs In cases of dangerousness, the court assesses the degree to which the patient is likely to be violent to oneself or others. 224 The judge also monitors conditions of the patient's confinement and the degree to which the treating facility respects a patient's rights. 225 Furthermore, the court

is responsible for conducting legally required site-based hearings, which are administrative in nature, to determine such issues as reasons for involuntary confinement and the capacity to refuse treatment. 226 In protecting a client's constitutional rights, all of the court's determinations are subject to judicial review. Mental health counselors assigned to the Los Angeles County MHCT or to hospitals contact clients, informing them of their constitutional rights (e.g., habeas corpus hearings). 227 Caseworkers assigned to Florida's Broward County sheriff's office screen mentally ill offenders in jails as potential MHCT candidates, monitoring their diagnosis and treatment once the defendants have had their day in court.228 Caseworkers in Los Angeles County screen nonviolent alleged misdemeanants and felons to determine whether they are mentally ill and willing to accept treatment with deferral of trial for criminal charges.229 In additional mental health personnel staff the Sheriff's department to provide screening of new inmates and treatment for those identified as mentally ill.

In some states with traditional trial courts, ensuring procedural justice may be more problematic. While the prosecution formerly had the burden of proving the offender was free from mental disorders, in recent years this burden has shifted to the defense."' For example, changes in state and federal law have allocated to the defendant the burden of proving an insanity defense. 231 Similarly, some states have upheld decisions placing the burden on the defendant to show incompetence to stand trial under a presumption of competence.232 Some more radical states have even abolished the insanity defense or permit judges to disregard expert testimony of insanity. "' Judges in these jurisdictions have the ethical responsibility to uphold therapeutic jurisprudence

principles to protect the right to due process and credibility of the judicial process.

Soon after arrest, the MHCT participates in screening for clients who may meet acceptance criteria as nonviolent (or misdemeanant) offenders, or, alternatively, who may be deemed as dangerous to themselves or others."' Because of both the MHCT judge's experience in monitoring such mentally ill clients and the unique cooperative communication between treatment and court entities, clients may find they cannot readily manipulate the MHCT system by using deceptive strategies that otherwise may have worked in traditional trial court settings."'

At an initial hearing, the MHCT judge explains the defendant's rights regarding treatment programs.6 Judges may elect to release the mentally ill defendant on condition that the defendant enroll in a mental health program or comply with probationary requirements.237 Judges may state that clients accepting the treatment option will waive their right to a speedy trial. 238 On a typical day at the Los Angeles County MHCT, Judge Shabo may hear up to forty or more cases, with perhaps four to five defense attorneys representing clients and a corresponding two to three district attorneys prosecuting cases on behalf of the People.?139 Most mentally ill offenders in the Los Angeles County MHCT are transported under supervision by sheriffs into temporary holding cells on site prior to their courtroom appearance." A panel of psychiatrists is available each

day at the facility to evaluate persons in and out of custody and to report their findings back to the court.

Defense attorneys may encounter special problems associated with their ethical obligations to represent mentally ill clients.24` Professor Jan Costello states, "Lawyers are likely to share the general public's unease with mental disabilities. A client who cannot readily perform the analytical and decision-making functions that are presumed to be part of the lawyer-client relationship can frustrate the lawyer. "242 Mentally ill clients appearing before the Los Angeles County MHCT judge are often-but not always-lower class individuals who may be poor, indigent, unemployed, and deficient in supportive family relationships. At times, these clients may appear either uncooperative, failing to recognize their need for legal representation, or sufficiently disoriented that they are incapable of communicating rationally with their lawyer.2M However, public defenders assigned to such clients must ensure that client needs are met, while guarding against overly paternalistic tendencies to "care" for the client. Professor Costello cautions, "the lawyer who

simply takes on the role of guardian without being appointed by a court violates the client's legal right to make decisions unless and until he or she is declared incompetent by an appropriate authority. ,246 Thus, she encourages defense attorneys to avoid the "dangers of paternalism" and to give their clients the benefit of complete representation, consistent with counsel's ethical obligations.247

Defendants at the Los Angeles County MHCT are provided phone access to their public defenders, although the defenders' heavy caseloads prohibit monopolization of their limited time.248 Defense attorneys must balance their clients' need for intensive treatment against the potentially adverse consequences of both waiver of trial and the possibility of courtmandated treatment of indefinite duration.249 When clients periodically express dissatisfaction with their defense attorney's representation, the judge may find it advisable to inform the client that he has delegated decision-making responsibility over many procedural matters to the attorney. However, if dissatisfied, the client may seek to obtain another defense attorney, if available, or to representation in pro per.' When frustrated clients elect to represent themselves, they may discover court proceedings to be too complex to be comprehensible, inadvertently making detrimental decisions. Thus, the MHCT judge should provide the defendant with information regarding the potential risks of selfrepresentation, preserving the client's future option to obtain assistance of counsel."25

MHCT prosecutors, seeking to protect public safety, must determine upon initial psychiatric evaluation whether a particular client warrants

treatment or punishment for criminal offenses. 252 In select cases, prosecutors may elect to argue that mentally ill offenders could attempt to escape imprisonment by being inappropriately assigned to treatment programs. 253 Professor Perlin notes a commonly perpetuated public misconception is "that insanity was too easily feigned, that psychiatrists were easily deceived by such simulation, and that the use of the defense has thus been `an easy way to escape punishment.""' zsa However, this public fallacy is not supported by reported scientific studies, and undetected malingering is an infrequent occurrence. 25 However, prosecutors may wish to inform the court that they retain discretion to resume prosecution of alleged offenders failing their treatment programs."6

Psychiatric experts are routinely utilized by both defense and prosecution attorneys to determine the clinical diagnostic and prognostic profiles of incarcerated defendants. In the Los Angeles County MHCT, psychiatric experts may be permanently assigned to large state hospitals, regularly testifying in court." Additionally, external private psychiatrists also have been appointed by the MHCT judge and reimbursed through Los Angeles County funding within reasonable budgetary allocations."'

Although MHCT judges may order diagnosed mentally ill clients into necessary treatment, state hospital or other treatment facilities could conceivably refuse admission because of overcrowding or the defendant's inability to pay for services rendered. 259 Dr. E. Fuller Torrey commented, "The most sobering side of jail diversion . . . is the [often incorrect] assumption that there are public psychiatric services to which the mentally ill individuals can be diverted." ' Yet, Ed Cooper,

President of Novastar Opportunities for the Mentally Ill, astutely observes that the court possesses legal authority to "allow [] you to force [provision of] community treatment in a state where there is no community treatment law. ,261 Michael Elwell, mental health services coordinator for the Broward County jail, supports expanding existing treatment facilities to accommodate needs of the mentally ill. He comments, "If you dedicate resources to individuals, somewhere down the line your costs decrease tremendously. Besides, it's the right thing to do."262 Dr. Henry Steadman's comprehensive study found six factors were regularly associated with successful jail diversion programs: "(1) integrated services, (2) regular meetings of key agency representatives, (3) boundary spanners, (4) strong leadership, (5) early identification, and (6) distinctive case management services."263 To meet an anticipated increased medical need for psychiatric care due to MHCT intervention, Broward County recently has proposed construction of a $3 million forensic mental health treatment center, providing beds for treatment lasting up to four months in duration.' Concerned communities may wish to follow Broward County's lead with similar budgetary commitments for provision of increased levels of care for these clients.

Pending results of their treatment, some jurisdictions may elect to defer prosecution of mentally ill clients for crimes committed, while other jurisdictions may wish to find defendants guilty of the crime but mentally disordered, with placement on probation. 265 Clients are motivated to cooperate in treatment, since under either court option, clients who are treatment compliant will not be incarcerated, whereas those who are not face resumption of criminal proceedings and completion of their

sentences.266 Over the two years since its inception, judges in Broward County's MHCT ordered 24% of its clients to community programs, provided psychiatric evaluations on 17%, and hospitalized 15%; another 7% were treated by private psychiatrists.267 In addition, the Broward County Mental Health Task Force successfully obtained the $145,000 initially targeted for funding the Cottages at the Pines, a twenty-five bed hospital center designed to treat and house misdemeanant mentally ill offenders.26

F. Creation of Functional Conditional Release Plans in Prevention of Potential Relapses or Recidivism

Judges in newly established MHCTs are encouraged by the approaches of Judge Lerner-Wren and Judge Shabo to create a workable condition-of-release plan defining circumstances required for release of a former mentally ill offender back to society.269 For example, in Judge Shabo's Los Angeles County MHCT, an elderly sixty-five-year-old former child molester was imprisoned for most of his lifetime, with his first offense occurring at age seventeen. He suffered from such severe dementia that he became disoriented, lost and could not find his cell after visiting the latrine. While one psychiatric expert testified he might still experience unnatural lusts for children consistent with past crimes, another medical expert stated that the demented defendant was incapable of executing an organized plan to molest a child. Judge Shabo released the defendant to a family member as conservator charged with the responsibility of ensuring that the client was not alone with children, thus minimizing risk of re-offense.

Courts are empowered to actively monitor the use of conditional release and community outpatient treatment programs for mentally ill offenders.27" While Professor John Monahan notes that "individuals with severe mental illnesses are responsible for no more than 5 percent of violent episodes . . . each year," it is "especially unnerving" when such incidents occur. Judges necessarily balance the ability of the mentally ill patient to be treated in the community as the least restrictive setting against potential danger to public safety."' The judge may hear detailed

expert medical testimony regarding predictors of future dangerousness and evidence regarding the offender's mental illness and absence of potential for violence before granting conditional release.27? Even if the judge allows such release, violations of conditions in the court's treatment plan will result in discontinuance of treatment and re-incarceration." Courts may assign responsibility to community treatment centers or other mental health professionals for a mentally ill offender's monitoring and transition back to society.z'S For example, following a court order for treatment, Broward County assigns mental health coordinators who insure that released defendants are safely relocated back to the community.276 In this endeavor, Dr. Steadman recommends deployment of case managers who assist defendants in obtaining such basic benefits as Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), Medicare, Medicaid, General Relief, or food stamps. 277 Effective diversion programs also include "community-based mental health, substance abuse, and housing services. ,278 In addition, as with drug courts, MHCTs may elect to use employment counselor guidance to facilitate rehabilitative transition.279 To prevent relapse, judges should maintain close supervision over the conditional release treatment process, with some courts requiring at least initial periodic court appearances (e.g., biweekly) by clients, attorneys, and treatment personnel or probation officers."

After successful completion of the conditional release program, courts maintain wide discretion in decisions regarding final release or discharge of the offender from treatment and custody.281 A broad spectrum of past and present dangerousness behavior may be considered in assessing an offender's future probability of recidivism. 112 Courts also evaluate whether the offender's mental illness is in remission or controlled by

medication, and whether there is a likelihood that the offender will maintain good behavior upon release.283

VI. Prescription For Judicial Reform: Action Plan For The Establishment Of State Mental Health Courts

In this Part, a general action plan for the establishment of state MHCTs will be presented. Topics to be discussed include obtaining financial and political support for the creation of MHCTs; House and Senate companion bills entitled, "America's Law Enforcement and Mental Health Project," providing for pilot state MHCT programs; anticipated economic savings obtained in establishing MHCTs; investigation of the potential role of MHCTs in reducing criminal recidivism rates; MHCT judges in the news media as advocates of therapeutic jurisprudential approaches; and current progress in creating state MHCTs of the new millennium. Finally, Appendix A provides for proposed legislation entitled, the "Mental Health Court Diversion Bill," for consideration by state legislators, courts, mental health departments, academicians, and other concerned individuals or governmental entities who may wish to support the creation of state mental health specialty courts in their respective jurisdictions.

A. Obtaining Financial and Political Support for Creation of State Mental Health Courts

Predictably, the greatest barrier to establishment of state MHCTs is in obtaining adequate political and financial support for such programs. Ultimately, state legislators, policy-makers, and citizens hold the purse strings to authorize and permit creation of these specialty courts. At times, a newsworthy criminal event triggers immediate public awareness for the need for specialized courts (e.g., mental health, family, juvenile & drug courts).284 Alternatively, visionary political leaders may pioneer state judiciary experimentation based upon past successes reported by other specialty courts in distant jurisdictions. MHCT proponents may be encouraged by recently reported successes in establishing numerous drug specialty courts-now exceeding 425 in number-having sprouted and grown substantially from meager beginnings.zgs

For example, Florida's Broward County MHCT was authorized and established by Chief Judge Dale Ross in 1997, 286 after two years of intensive investigation as a joint endeavor by the district attorney's office, public defender's office, sheriff's department, and the Henderson Mental Health Center. 287 Susan McCampbell, Director of the Department of Corrections and Rehabilitation for Broward County, said that in 1994, county officials recognized that mentally ill offenders were causing backlogs in the civil courts, with overcrowding of the jail and forensic treatment centers.288

Henry Steadman, President of Policy Research Inc., noted that while "a lawsuit or a court order" often compels governments to act in establishing new judicial programs such as MHCTs, it is vastly preferable to bring agencies together to discuss common objectives and needs.289 As a case in point, Florida's Judge Mark Speiser created a task force of county officials who met monthly and discussed the possibility of creating a state MHCT based on the successful drug specialty court experiences of other states. 2 Under Florida's task force plan, the proposed MHCT judge would identify nonviolent offenders as ideal candidates for psychiatric evaluations, community mental health services, and possible commitment to state mental health hospitals. Furthermore, the plan delineated that this MHCT judge would provide needed continuitylacking in generalist trial courts-to ensure that mental health care providers responded quickly in providing adequate treatment to mentally disordered defendants.291

In creating the now successful Broward County, Florida MHCT, Henry Steadman acknowledged that the most difficult hurdle to overcome was to ensure that sufficient mental health service resources were available to accommodate the large influx of mental health clients entering the court system.22 California observers add that MHCT judges and courthouse facilities should be given adequate financial resources for provision of modernized building structures and larger salaries to encourage employment of highly qualified MHCT attorneys and support staff.293

In Florida's MHCT, a task force recommended that its new judge begin by hearing misdemeanor offense cases first, before transitioning to more difficult felony cases. 294 Judge Lerner-Wren's MHCT started slowly with about a dozen cases per week,2"5 and this figure has increased to over twelve hundred cases heard since the court's inception. 296 Broward County's MHCT obtained both a $1.5 million state grant and $250,000 locally for both the MHCT and the Cottages in the Pines hospital site."'

Other states have followed the examples set by Los Angeles and Broward County MHCTs. Arkansas' Pulaski County Circuit-Chancery MHCT Judge Mary McGowan says that states such as Arkansas "are really putting their money and resources where their mouth is," as "a major commitment" to state mental health objectives.298 Florida's Palm Beach and Fort Pierce judges and mental health workers also debate whether a MHCT should be provided for misdemeanor repeat mentally ill offenders. Circuit Judge Ronald Alvarez publicly comments, "It's hard for me to envision that there is not public or private money for this. We need to keep the mentally ill out of the revolving door of the criminal courts.""3 Dr. Henry Steadman states, "the mentally disturbed jail inmate must be viewed as a community issue. "3 Consistent with this philosophy, Florida's Osceolo County has already taken the leap of faith to begin a new MHCT.32 Similarly, Chicago is contemplating a MHCT

to "steer-or even mandate-mentally ill detainees into treatment,""303 Denver's legislative committee is also considering a MHCT to deal with mentally ill offenders guilty of minor offenses,34 and Albuquerque hopes to obtain state funding for a pilot MHCT program.305 NAMI notes that a MHCT has just been created in Austin, Texas, with another less publicized MHCT recently built in Arkansas.3"6 Ohio's Butler County was promised $370,000 in operating state funds for a MHCT, with additional financial support anticipated. 307 Even the Canadians have joined the bandwagon and acknowledged the utility of MHCTs, with Toronto's MHCT lauded in the news as pioneering social change upon its inception in May 1998.307

Among the newest state MHCTs is in Washington's King County, recently started at an initial cost of about $900,000 a year39 and under the supervision of Judge James Cayce."O The stabbing death of a retired Seattle firefighter by a paranoid schizophrenic misdemeanor offender stimulated creation of the task force that proposed the creation of this MHCT, explicitly patterned after the Broward County MHCT. Since more than 200,000 misdemeanor cases are heard by twenty-six King County District Court judges annually, the new MHCT, with its own judge, prosecutor and public defender, was slated to hear up to fifty new cases per month."'

For states on limited budgets that cannot immediately create a fully operative MHCT, periodic rotation of mentally ill client cases among traditional trial court judges may pose a more realistic option. For example, in California's San Diego County court, "the job of hearing the mental health cases is rotated yearly among the judges because the caseload is so heavy, and so sad. "312 In San Diego, Superior Court Judge Laura Hammes hears mentally ill client cases on Tuesdays and Thursdays, noting, "We do have the law, we just don't have the resources. "313 Limited funding negatively impacts the ability of the courts

to hear and monitor mentally ill offenders' diagnosis and treatment. In one unfortunate incident, Judge Hammes sharply criticized the fact that funding shortages were responsible for the unauthorized medical release of a schizophrenic man she ordered to be temporarily held in the San Diego County Psychiatric Hospital prior to transfer to a California mental institution."' Alaska, facing a prison system packed with about 30% of the three thousand inmates suffering from mental illness, has created "a sort of makeshift mental health court," where two District Court judges hear cases involving misdemeanor mentally ill offenders as part of the new Coordinated Resources Project."'

In Congress, House Democrat Ted Strickland recently has sought passage of House federal legislation providing for $10 million over the next five years to partially fund twenty-five pilot state MHCTs throughout the U.S. 316 In Representative Strickland's legislative proposal, called "America's Law Enforcement and Mental Health Project" (H.R. 2594), each MHCT would be provided with approximately $300,000 per year, with the remaining estimated costs of about $75,000-$100,000 per year being paid by local communities. He cited a 1999 U.S. Department of Justice study revealing that over 250,000 jail and prison inmates are mentally ill and in potential need of state MHCTs, which could place clients in community treatment programs."'

Congressman Strickland, a former psychologist who previously worked in the Lucasville prison and an ordained minister, commented that many mentally ill jail inmates are incarcerated for relatively insignificant minor offenses (e.g., trespassing) yet deteriorate in jails, with behavior escalating to worse offenses, due to a lack of treatment for their mental disorders.319 Under many state statutes, police-acting as "street comer psychiatrists"-may arrest mentally ill street people as substitute intake procedures because arrest is deemed to be less burdensome than procedures for emergency psychiatric intervention.320

Congressman Strickland notes, "Jails are becoming America's new mental asylums. Our court systems, prisons and jails are being clogged with mentally ill individuals who should be taking part in mental-health treatment. "321 Moreover, Strickland says,

I have seen individuals who are living out the rest of their lives behind bars because they committed crimes that probably would not have been committed had they received mental health treatment. I have seen the effect of prison on the mentally ill and the effect of the mentally ill on prison.22

He adds, "I am excited about the concept of having mental-health courts, where appropriately we can divert people into treatment rather than incarceration. ,323

Under Representative Strickland's Mental Health Project plan, eligible offenders with mental illness, retardation, or coexisting mental illness and substance abuse problems may be diverted into MHCT proceedings if these clients are charged with non-violent misdemeanor crimes. 32 In addition, judicial and law enforcement personnel are provided with training programs "to identify and address the unique needs of a mentally ill or mentally retarded offender."" Under this proposed legislation, state government officials request federal funds to finance a MHCT by submitting an application to the Attorney General.TM

While Attorney General Janet Reno has given Representative Strickland "positive feedback," the Congressman awaits the President's endorsement of this bill.127 Like Strickland, California's Assemblyman Bruce Bronzan has estimated that it would cost approximately $2 billion annually to hospitalize and treat the nation's homeless mentally ill, supporting commitment of public funds for such programs.TM

Like Representative Strickland, Senator Mike DeWine (R-OH), a former prosecutor, and Senator Pete Domenici (R-NM) have introduced companion Congressional legislation (S. 1865) providing for "125 pilot mental health court programs during the next five years. " 329 This project "is designed to identify at an early stage those non-violent mentally ill

offenders within our justice system, and to use the power of the court to assist them in obtaining appropriate treatment from trained experts.""33 Senator DeWine states:

Each mental health court program would include: Specialized training of law enforcement and mental health court judicial personnel to address the special needs and challenges of nonviolent mentally ill offenders; Centralized case management of all nonviolent cases involving qualified mentally ill or retarded offenders; Voluntary assignment of qualified offenders to outpatient or inpatient mental health treatments; Life skills training, job placement, and education for mentally ill participants; and Continuing judicial monitoring of offenders participating in a treatment plan.TM

Under this MHCT project, "[e]ach court would have its own judge, prosecutor, defender, social worker and probation officer, working with local mental health specialists on treatment plans, including medication, counseling, housing, even job training." 332 Senator DeWine states, "[m]ental health courts offer an alternative. These courts are a very good and viable means of addressing this problem, providing the mentally ill with the proper treatment and help they need. ,333

In June 2000, Senators Domenici, Kennedy, and Wellstone presented the Mental Health Early Intervention, Treatment, and Prevention Act (S. 2639), which amends the Public Health Service Act to provide treatment programs for the mentally ill.33 The Domenici bill provides for up to 125 MHCT grant programs that include full evaluation of potentially mentally disordered defendants by qualified mental health professionals, specialized training of court personnel and law enforcement to address needs of mentally disordered defendants, judicial supervision of the delivery of mental health treatment, and centralized case management. The Bazelon Center for Mental Health Law notes that the Domenici bill limits court supervision to the maximum length of the sentence for the pending charge."' Mr. Chris Koyanagi, Director of the Bazelon Center, expressed support for the Domenici bill because it allows state MHCTs to assist both "those who fall through the cracks" as well as seriously mentally ill offenders charged with more serious crimes.336

In alignment with the position taken by Congressmen Strickland, DeWine, and Domenici, NAMI also firmly supports establishment of MHCTs, with transfer of nonviolent offenders from prisons and jails to treatment centers. Similarly, the American Jail Association, the American Correctional Association, the American Sheriff's Association, and the National Mental Health Association endorse the creation of state MHCTs.33

Like congressional MHCT proponents, NAMI espouses a preventative law approach: using allocated funds in community law enforcement programs to establish crisis intervention teams, which are designed to reduce criminal recidivism among mentally ill clients.339 NAMI recognizes that police should be educated to appreciate the constructive support the crisis teams provide in the treatment of mentally ill offenders, in order to "help make the community safer."" NAMI also supports access to mental health treatment through either private health insurance or government-funded medical programs. NAMI criticizes the fact that police in 84% of the country's jails have less than three hours training on problems of those with mental illneSS.341 NAMI proposes that federal laws be amended to allow states to use prison funds obtained under the Violent Offender and Truth-in-Sentencing grants to improve diagnosis and treatment of the incarcerated mentally ill.342

Similarly, at the state level, California Senator Wesley Chesbro (DArcata) is promoting S.B. 1770 to create MHCTs to which mentally ill offenders would be diverted, "where judges, with the help of therapists and other experts, would order various types of treatment, instead of sending the individuals to prison. "313 Chesbro's bill "would require people to receive detailed treatment plans when they are released from state hospitals," rather than being released without care.3' Two other bills, A.B. 1762 and A.B. 1718, have been designed to improve police interface with the mentally ill, responding to reports that there were "25 shooting deaths of mentally ill people by the Los Angeles police since

1994."3' This year, California Governor Gray Davis began a $10 million project increase for a new program "aimed at bringing homeless mentally ill people off the streets and into treatment." 146 California legislators called this program "an unmitigated success" that "needs to go well beyond $10 million."347 Within four months from inception, the program already had reportedly helped to remove one thousand people from Northern and Southern California streets.

In New Jersey, Assemblyman LeRoy J. Jones, Jr. recently has introduced A.B. 2355 to establish the "Mental Health Court Pilot Program"348 (MHCT Pilot Program) for diversion of nonviolent mentally ill and mentally retarded offenders from incarceration into treatment. Under this bill, mentally disordered or retarded defendants charged with nonviolent petty disorderly persons-offenses who meet qualification standards would be transferred to the MHCT Pilot Program for diversion into treatment in a "short term care facility" as a voluntarily admitted patient until release. Thus, federal and limited state legislation currently is being debated on the floors of Legislatures for the possible establishment of MHCT pilot programs.

B. Computing Projected Economic Savings of Mental Health Courts

A potential marketing consideration for state and local governments is the predicted economic savings resulting from establishment of MHCTs. However, since information regarding anticipated cost savings for recently created state MHCTs is limited, estimated cost savings for MHCTs may be analogized, at present, from similar state family and drug court programs. As a baseline, in Florida's Broward County, it was estimated that jails cost approximately $65 to $100 per day to house mentally ill offenders.349 One preliminary report indicates these costs of incarceration may be dramatically reduced by treatment; yet, state agencies understandably hesitate to pay high initial start-up costs of up to $350 per day to treat mental illness without demonstrably justified downstream cost savings.350

However, perhaps analogous to MHCTs, cost savings for drug courtmandated drug treatment programs are projected to be substantial, estimated at approximately $5,000 per jailed inmate.351 The average cost for treating drug addicts in jails ranges between about $900-$1,600 per participant. If the client was originally a state or federal prisoner, annual

cost savings can approach $20,000 per client, since successful treatment reduces the need for prolonged incarceration or re-imprisonment for repeat offenses. 112 Significant cost savings-plus reductions of costs incurred in traditional courts for prosecution and trials-justify the existence of various specialty courts.3" For example, in King County's drug court, cost savings to taxpayers has been estimated to be $522,000 in the first three years due to successful rehabilitation.314

Yet family court critics condemn high costs ass and redundancy in specialized courts, arguing that generalist trial court judges can learn to be as competent as their specialist judge counterparts. However, more recent studies have shown that family courts result in substantial longterm cost savings due to increased judicial efficiency, economy, competency, and quality of adjudication, accompanied by smooth coordination among judicial, criminal justice, and treatment personnel. Clearly, follow-up investigation is necessary to substantiate these initially encouraging findings of significant economic savings for these various state specialty courts.

C. Proposed Further Investigation of the Role of MHCTs in Reducing Criminal Recidivism Rate

Preliminary reports indicate that MHCTs have been effective in reducing rates of criminal recidivism among mentally ill offenders. For example, Robert Siegel states that Broward County's MHCT has "cleared the Broward jails of an entire class of inmate, the mentally ill who commit non-violent misdemeanors. It's a modest program but so far, recidivism is low."358 According to Judge Lerner-Wren, more than 675 clients had entered this Florida MHCT, without any defendant yet committing a violent crime.359 This initial finding is consistent with the

1998 MacArthur Foundation study showing that "[m]entally ill people who take their medications are no more dangerous than the population in general." 360 Dr. Barbaree, a renown Canadian forensic psychiatric expert, explains, "There are strong indications of reductions in recidivism among those who receive treatment. "361 Similarly, Dr. Janice Marques of the California State Department of Mental Health has obtained encouraging preliminary results of ingeniously designed controlled, longitudinal studies indicating the effectiveness of psychological treatment of sex offenders utilizing sophisticated statistical analyses.362

Likewise, the renown Dr. Karl Hanson has published meta-analyses suggesting that risk assessment for mentally ill offenders may have immense value in providing valid dynamic, rather than static, predictors of criminal recidivism.363 Further research is necessary to determine the long-term effectiveness of mental health treatment in diminishing criminal, violent, and sexual recidivism among men