Rehabilitating the Court System
Gulsah Cetin
Barry University

Abstract
This paper focuses on a court innovation for criminally involved people who suffer with serious mental illnesses, such as schizophrenia, bipolar disorder, or major depression. It describes a recently developed strategy for dealing with the challenges of working with mentally ill individuals. The paper also discusses the historical and legal underpinnings of Mental Health Courts (MHCs), their growth, and the defining elements and operations of the earliest MHCs, which are best, viewed as evolving models of practice. Finally, the paper reviews studies of MHC operations and effectiveness and suggests future directions for MHCs.

Rehabilitating the Court System
In 2000, the Bureau of Justice Statistics (BJS) reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. That number is now estimated to be 1.25 million. The rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent). MHCs were developed in an attempt to solve the problem of criminalizing the mentally ill; this phenomenon occurs when the mentally ill are arrested and prosecuted for minor offenses rather than being treated by the mental health system. A greater focus on this may foresee a decrease in the rate of reported mental health disorders within the prison system.
The basis for the above approach was founded on the concept of Therapeutic Jurisprudence (TJ), the notion that the law can play a role as a potential means of therapeutic influence and this could be achieved by making court proceedings more therapeutic to mentally ill prosecutors through involvement in treatment, MHCs hope to produce better outcomes for their defendants. The underlying belief of this approach is that the charges these individuals face are more a result of their mental illness than a criminality. It must be noted that MHCs have expanded rapidly in the past several decades to provide more efficient coordination of treatment and supervision of prosecutors with behavioral health problems. A significant number of prosecutors in these court-based programs have co-occurring mental disorders, which predict early termination, re-arrest, and other negative outcomes (Arrigo, 2010). More recent years have seen a proliferation of problem solving courts designed to rehabilitate certain classes of prosecutors and thereby resolve the underlying problems that led to their court involvement in the first place.

Therapeutic Jurisprudence
The term Therapeutic Jurisprudence first appeared in the law literature in the late 1980s, in the context of mental health law. TJ is defined as "the study of the extent to which substantive rules, legal procedures, and the roles of lawyers and judges produce therapeutic or anti-therapeutic consequences for individuals involved in the legal process" (Gray, 2010). Since its introduction, TJ has emerged as an approach for examining an extensive array of legal subjects, including the response of the criminal court system to the problems and needs of prosecutors and how legal decisions can affect therapeutic outcomes. In summary, TJ emanated some two decades ago from mental health law, as scholars began looking at the positive and negative therapeutic aspects of proceedings leading to the involuntary civil commitment of mental patients (Wexler & Winick, 2003; Wexler 2009). Therapeutic jurisprudence looks at various aspects of the law to determine whether or the extent to which substantive rules of law, legal procedures, and the roles or actions of legal actors are therapeutic.
Legal scholars view TJ as the application of social scientific theories and methodologies from a wide variety of disciplines for the purpose of understanding and promoting the psychological well being of participants in the legal process. As discussed above, TJ recognizes that the law and legal actors, as well as legal rules and procedures, can all have therapeutic or anti-therapeutic consequences for those who are affected by the court's activities and decisions (Wexler and Winick, 2003). The concept of TJ favors the court's adoption of a problem- solving, proactive, and results-oriented posture that is responsive to the current emotional and social problems of legal consumers.
TJ conceptualizes the law as a social force and judges as therapeutic agents who exercise the court's authority to promote clients' psychological health and social interests, while protecting their due -process rights and ensuring that justice is served in every case (Wexler and Winick, 1996).
The first nationally recognized MHC was developed in Broward County, Florida, in May 1997. Local criminal justice officials took note of the many mentally ill who had been arrested for petty offenses and subsequently suffered an exacerbation of their symptoms while incarcerated. Defendants charged with for example, assault could be admitted to the program if they express a genuine desire to participate and seem able to achieve their therapeutic goals. This coincides with MHC objectives, which are to "address the unique needs of the mentally ill in criminal justice system" (Boothroyd, et al. 2003).
Effectiveness of MHCs
Criminal justice systems are under constant pressure. Rising case loads, countless court dockets, growing prison populations and high re-offense rates have resulted in growing frustration with systems that have been criticized as being expensive, out of date, complex, unfair, slow and lacking regard for the public. Some of the positive outcomes of TJ include: Therapeutic jurisprudence creates more inclusive, optimistic and positive frameworks for justice systems and transforming the ways in which dispute resolution systems are conceived of and operate; Therapeutic jurisprudence primarily a practical project, focused on humanizing legal processes. Therapeutic jurisprudence is the “study of the role of the law as a therapeutic agent” and, in particular, the influence of the law on emotions and on psychological well being (Wexler, 2011). It “offers the promise of creating a ‘law of healing’”, with a particular emphasis on modifying the conflict, stereotyping, and scape-goating which often characterize legal systems and their interactions with those caught up in them (Wexler and Winick, 2003). All of this aids in bringing a more humane perspective to the criminal and judicial system and refocuses on rehabilitation and therapy.
Other changes in the judicial process include the change where by in problem-solving courts judges are no longer neutral arbitrators in adversarial justice processes. Instead, judges directly engage with court participants. The movement toward problem-solving court models emerges from a collaborative therapeutic jurisprudence framework. It is important to highlight that while the great majority of persons with severe mental illness are not violent, there is a small minority who may become aggressive when stressed. The available evidence suggests that persons with severe mental illness who are involved in treatment have a lowered risk of arrest and violence because of the reduction of their psychiatric symptoms and substance abuse. However, generally, many of the individuals most in need of psychiatric treatment are least likely to believe they need it and adhere to it. Therefore, if the incidence of violence in incarcerated persons with severe mental illness is to be reduced, a means must be found to involve them in treatment. Enforcement of treatment regimens applied by MHCs can increase adherence to therapy. MHCs can be a powerful force to reduce violence and recidivism. By applying the principles of therapeutic jurisprudence, these courts can protect society and improve the lives of mentally ill prosecutors who have been violent.
Regardless of these positive aspects of MHCs there are arguments against such activities. Despite national budgetary support for the development of MHCs and promising efficacy findings, several critics have shown staunch opposition to their use in the criminal justice system. Six main criticisms have been raised. While these are all valid concerns with varying degrees of evidence to support them, we will argue restructuring the way that we think about MHCs can allay the majority of these concerns. Some literature shows that the boundaries between treatment and punishment have become increasingly blurred, with many treatment programs having primary aims, which are mainly punitive in nature, e.g. protection of the community from the prosecutor. Another main criticism is with regard to the effectiveness of the treatment, which requires that confidentiality be breached. treatment programs offer only limited confidentiality. Prosecutors are required to give permission for their cases to be discussed with a wide variety of people and agencies. The recipients of this information may include both clinical and non-clinical personnel, especially judicial officers, parole authorities, corrections officers, members of their family. Alongside this respect for the individual’s right of privacy and the maintenance of confidentiality are major concerns. In treatment programs the therapist may not only be allowed but is often required to breach ethical codes of good mental health practice, the justification being that such breaches are the only way that treatment can be made effective.
However, the primary measure of treatment success is that of the protection of society rather than alleviation of the prosecutor’s suffering. Evaluations of effectiveness of treatment programs tends to focus almost solely on measures such as recidivism rates, delays in onset of reoffending, decreases in the violence and intrusiveness of behaviors of those who do reoffend, and/or decreased cost to the community. On the other hand, outcome measures such as prosecutor satisfaction with the program appear to be largely ignored or considered to be irrelevant, even though it is acknowledged that some techniques such as promoting an prosecutor’s self-esteem are important in achieving decreased recidivism rates (Wexler, 2009). It is useful to emphasis that therapeutic jurisprudence is a mental health concept whose aim is to provide therapy that improves well being in prosecutors rather than to demonstrate concern for community. In fact, therapeutic jurisprudence is a legal concept that utilizes social-science knowledge to highlight the therapeutic and anti-therapeutic impacts of the law, legal procedures, and legal roles on all individuals.
Attempts to examine the effectiveness of MHCs have been fraught with several challenges. Unlike Drug Treatment Courts (DTCs), in which the ultimate goal is to help clients refrain from illicit drug use, the goal of MHC is not quite so clear-cut. Obviously, the court cannot require clients to stop being mentally ill. In addition, prosecutors who participate in MHCs have a variety of different illnesses and symptoms (National Drug Court Institute, 2011). Therefore, defining success for MHC participants is difficult and often must be done case by case. Regardless, several suggestions can be made which would be to the benefit of the entire MHC and TJ process.
Conclusion
Firstly, Given that MHCs have proliferated to the degree they have, further research is clearly warranted. In particular, focus in the field should be directed to defining the objectives of MHCs. The available research seems to suggest the primary objective of MHCs is to influence criminal justice outcomes, such as number of arrests and recidivism rates. However, the therapeutic jurisprudence approach suggests that mental health outcomes, such as symptom reduction and days in inpatient hospitalization, are equally important. Further, judges and other courtroom personnel should receive training regarding mental illness and treatment efficacy. Similarly, education is also needed for law enforcement, although teaching to this group should differ somewhat in how it is directed. Officers should be informed of specific community mental health resources available as well as the procedures required to involve individuals with varying levels of mental health treatment.
It should be noted here that longitudinal research is also needed for examining MHC operations and effectiveness. So far, we know little about the lives of prosecutors who have completed MHC treatment. It is also evident that many individuals who end up in MHCs have already been in the mental health system at some point in their lives. What evidence is there that courts can bring about different results?
A number of elements, such as staffing, are essential to the court's success. Representatives from the mental health system must become core members of the team; they are experts in diagnoses and treatment, and they are knowledgeable about the availability and accessibility of mental health services. Greater access to services is also critical to the successful implementation of these courts. Therefore, a systemic change is needed to address the lack of treatment options for all prosecutors.
Each MHC has its own rules and procedures (Gray, 2010), although no single model for MHCs would fit all jurisdictions (Wexler, 2008), consistency among similar jurisdictions would be quite useful. Because of this inconsistency, MHCs have fewer resources than DTCs, and research into the effectiveness of the components of MHCs is negligible (Wexler,1996).

References
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