Mental illness and the courts

November 18, 2022

By Josh McGhee

This is the second, monthly edition of Diagnosis: Injustice, the MindSite News newsletter exploring the intersection of mental health and criminal justice, written by me — Josh McGhee.

In this edition, we’ll walk through the efforts of the National Center for State Courts to examine and reform its response to defendants with mental illness. We’ll also look at some recent reporting from Wesley Lowery and Ilica Mahajan of the Marshall Project about the revolving door into the court system for mentally ill folks in Ohio. We’ll also hear from an incarcerated man in California about his journey in meditation through an essay in the Prison Journalism Project.

Let’s get into it…

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Mental Illness and the courts

Should defendants charged with minor crimes be evaluated for competency before trial?

In a recent report, a national task force charged with evaluating state courts response to mental health issues is recommending reforming the competency process, which is usually used to determine if a person suffering from mental illness or an intellectual disability has the capacity for legal proceedings. 

Many defendants charged with misdemeanors or non-violent felonies spend excessive time in jail – often more time than if they were convicted – awaiting these mental health evaluations.  Instead, courts should reserve the competency process for defendants charged with serious crimes, said the task force composed of chief judges, state court administrators, law enforcement officials and mental health professionals.

“The people who I see before me are often unwanted. By their families, who they’ve worn out given the lack of services. By programs, who deem them too difficult or too risky to deal with. By the public, who want them out of sight and out of mind,” said Task Force member Judge Nan Waller, who handles a competency docket in Oregon. “Sometimes the only door left open is the door into jail.”

Mental illness has a disproportionate impact on state and local courts. People with mental illness are 10 times more likely to be incarcerated than they are to be hospitalized. More than 70% of people in jails and prisons across America have at least one diagnosed mental illness or substance use disorder, or both, the report said.

For the last two years, the task force collected and analyzed information, discussed and debated best practices and developed tools and resources to hopefully improve the legal system’s interactions with people suffering from mental illness. From these meetings, the task force was able to develop resources to support improvements.

The task force also partnered with SAMHSA (the Substance Abuse and Mental Health Services Administration, a federal agency) hosting virtual meetings in all ten SAMHSA regions with chief justices, state court administrators and behavioral health directors. 

Courts often become an “entry point” for people to receive mental health and substance use services they need, said SAMHSA chief Miriam Delphin-Rittmon, a psychologist, in a call with reporters prior to the report’s release.

“This essentially was an opportunity again to strengthen partnerships and share knowledge and experience among practitioners, experts in the justice system, health care systems across the country, and to understand issues at all levels and to work toward solving them together,” she said. “It was also an opportunity to provide some of the nation’s most vulnerable communities access to comprehensive, culturally responsive and coordinated behavioral health services throughout various phases of involvement with the justice system.”

Other recommendations include:

• Using diversion programs at the earliest point possible.
• Improving case management practices for people with behavioral health issues.
• Changing the law around civil commitment ordering involuntary treatment be provided in an outpatient setting.
• Studying the programs they currently use for people experiencing mental health and substance abuse disoreder like interventions and specialized dockets to ensure they’re being used equally.
• Courts should involve people with lived experience into treatment, case management, and justice processes.

You can find the full report and recommendations here.

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Books, Meditation, and Jail

In July 2013, Arnold Brown picked up The Journey Within: A Spiritual Path to Recovery off the top shelf of a book rack in the dayroom at Auburn Jail in rural Northern California. Just a few pages into the book by Ruth Fishel, he decided to give meditation a try.

It soon became a regular go-to on the rides to court, which he described as humiliating, noisy, cramped, and nerve-wracking in his essay in the Prison Journalism Project, which trains incarcerated people in journalism skills and publishes their essays and articles. By meditating, Brown was able to remain at peace amid the chaos.

After reading another book, Brown was inspired to create a meditation group, although he hesitated at first because he was afraid of being perceived as weak or vulnerable. But when he approached a few men, they surprised him by committing to weekly meetings, where they talked about finding relaxation and peace in the face of their shared, stressful circumstances. 

A few weeks later, he asked a sergeant about starting an official program. It was eventually approved and a chaplain came in to teach meditation and yoga. Brown was transferred to prison in 2015, where he continues to practice. 

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Who’s Really Cycling In and Out of Cleveland’s Courts?

During the election season, you were bound to hear some version of the refrain: “violent criminals are cycling in and out of jail!” The argument may have been used to point fingers at your county’s “progressive” or “reformist” prosecutor. Or maybe it was to get you behind a “tough-on-crime” candidate, since they often repeat refrains like this to convince people to believe them.

The Marshall Project spent months in an Ohio county courthouse as part of its Testify series and found that people were indeed cycling through the Cuyahoga County Criminal Courts, but they weren’t necessarily violent criminals. Instead, the Marshall reporters found people living with mental illness and untreated addiction who committed nonviolent crimes.

People like Deshawn Maines, who was suffering from a severe mental disease when he Ubered to a home, kicked in the door, and took off with two televisions and a laptop, according to a court-ordered assessment. At court, the prosecutor rattled off a three-decade history of thefts and burglaries – Maines had more than 30 cases since the early ‘90s.

The vast majority of the defendants in county courtrooms are also not there for the first time. Almost 70% of the nearly 70,000 criminal court cases between 2016 and 2021 had a defendant with at least one prior charge, according to the analysis by The Marshall Project. About a third of the cases involved people with at least five prior cases, the analysis found.

Most of these defendants aren’t accused of serious violent crimes that would lead to lengthy sentences, Instead, they’re cycling through the courts every year or two and face charges that end in probation or brief stints in prison. Once released, the cycle continues. 

“A vast number of people who we sweep into the criminal system are not actually ‘criminal’ in any meaningful sense,” Alexandra Natapoff, a Harvard law professor and former federal public defender, told the Marshall Project.

“They are not scary, they are not dangerous,” said Natapoff, who has extensively studied low-level criminal offenses. “They do things we don’t want them to do, but the American habit of labeling people criminals and then throwing them under the societal bus is very particular and very American.”

What about diversion courts? While most of the cases involved drug addiction, mental illness, or both, almost none meet the strict eligibility requirements. The good news: The Ohio county will launch its “high-risk” drug court designed for defendants with addiction and lengthy criminal records in November.

Until next time,

Josh McGhee

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If you or someone you know is in crisis or experiencing suicidal thoughts, call or text 988 to reach the 988 Suicide & Crisis Lifeline and connect in English or Spanish. If you’re a veteran press 1. If you’re deaf or hard of hearing dial 711, then 988. Services are free and available 24/7.

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