The Future of Mental Health Courts and the Responsible Use of Resources

• Author: Richard D. Schneider - Hy Bloom - Mark Heerema
• Pages: 205-224

205

chapter eight

The Future of Mental Health Courts and

the Responsible Use of Resources

A. INTRODUCTION: A BROKEN SYSTEM AND A TEMPORARY

SOLUTION?

Conceptually, and by way of analogy, mental health courts and diversion pro-

grams may be thought of as buckets under a leaky roof. The water pours

through holes in the roof that keep getting larger. As holes in the mental

health-care system expand, we bring bigger and bigger buckets in the form

of additional mental health courts and diversion programs. Increasingly,

more and more of these programs are needed to keep pace. An alternative to

this escalating patchwork approach may be painfully obvious: f‌ix the roof; f‌ix

the leaky civil mental health-care system. There is little evidence to suggest

that courts are better at providing mental health care than are adequately

funded mental health-care services.1

How does this alternative f‌it with the emergence of mental health courts

within North America? Like any movement, the phenomenon of mental

health courts needs to pause and consider its role within a larger framework.

That is, are mental health courts and diversion programs an “appropriate”

response to the process of criminalization that has aff‌licted the mentally ill

within North America? The present chapter strives to tackle this question.

Accordingly, we offer a prescription for how we may proceed based on our

1 Candace McCoy, “The Politics of Problem-Solving: An Overview of the Origins and Devel-

opment of Therapeutic Courts” (2003) 40(4) Am. Crim. L. Rev. 1513.

206 MENTAL HEALTH COURTS

current understanding, followed by a discussion examining the future of

mental health courts and diversion programs.

B. HOW TO PROCEED FROM HERE

Having witnessed an increasingly taxed criminal justice system, increasingly

fail the mentally disordered of today’s society, we have come to appreciate,

albeit regrettably, how society has criminalized this segment of our popula-

tion.2 This failure has not only drawn attention to the incapabilities of the

traditional criminal justice system, but has also exposed the crumbling state

of our mental health-care system.

Accordingly, there is a need in society to address both issues. There is a need

to address, f‌irst and foremost, the state of our mental health-care system, as

well as a need to address the capability of our criminal justice system to ef-

fectively handle mentally disordered accused.

While we believe that there remains a role for mental health courts and di-

version programs within the criminal justice system, they do not represent

the only solution. More idealistically, these programs represent only one of

a host of initiatives designed to redress the plight of the mentally disordered

accused within society.

1) Fix the Civil Mental Health-Care System

a) Why Focus on the Mental Health-Care System?

The best prophylactic for the arrest of mentally disordered individuals is a

potent and well-resourced civil mental health-care system. Part of the solu-

tion to reducing the number of mentally disordered accused coming into

the criminal justice system is the creation of a single comprehensive men-

tal health-care system. Conceptually, it is important to focus on the mental

health-care system before the criminal justice system. If the provision of ser-

vices is viewed as a continuum, such services should be available as early

as possible. With a well-equipped mental health-care system, we can elim-

inate the probability of accused ending up in the wrong system and assist

the transfer of individuals from criminal court back to the civil system. The

objective should be to deal with mentally disordered individuals effectively

2 As noted in Tom Barrett, Raymond Slaughter, & Carl Jarrett, “People with Mental Illness

in Jails and Prisons: Colorado’s Model” (2004) 77(4) Spectrum 35: “Persons with mental

illness who are in the criminal justice system present today’s greatest challenge to criminal

justice and mental health professionals.”