By Samuel Bourgeois, JHBL Staffer
On Friday, September 29, 2017, Derrek Monroe, a 28-year-old man suffering from schizophrenia, was arrested for tampering with evidence and manufacturing and/or delivering a controlled substance. The same day he was delivered into the custody of Coleman County Jail, located deep within rural Texas, for booking and incarceration. A few days later, Monroe committed suicide by self-strangulation in the presence of a Coleman County jailor. Monroe’s estate subsequently brought action against the jailor and two of his supervisors for deliberate indifference to a detainee’s risk of death by suicide. On July 2, 2021, the Fifth Circuit of the United State Court of Appeals granted qualified immunity to the three jailors responsible for Monroe while in custody. While many inquiries can be posited regarding the constitutionality of Monroe’s treatment by the jailors, and their grant of qualified immunity, a broader question begs being asked: what can be done to keep an individual suffering from mental health concerns from being incarcerated in the first place?
The story of Derrek Monroe is not an isolated one. About two million times each year, Americans living with serious mental illness (schizophrenia, schizoaffective disorder, bipolar disorder, major depression, or brief psychotic disorder) are booked into jails and prisons across the United States. It is estimated that 20 percent of inmates in jail in the United States and 15 percent of prison inmates suffer from some form of serious mental illness.[1] Given the size of our jailing and prison system, this means that there are more than 300,000 individuals incarcerated while suffering from serious mental illness. For Reference, Chicago’s Cook County Jail, New York’s Rikers Island, and the Los Angeles County Jail each hold more individuals suffering from mental illness than any single psychiatric hospital in the United States.
The toll of incarceration on individuals suffering from mental illness is devastating. Mentally ill inmates receive inadequate mental health services and as a result have longer incarceration rates and higher rates of suicide.[2] For example, the Department of Justice (“DOJ”) recently conducted an investigation into California’s San Luis Obispo Jail. The DOJ found a failure to provide adequate mental health services and admitted to a systematic problem regarding mental health services. Additionally, a recent study at New York’s Rikers Island Jail found the average stay for an inmate without mental illness is 42 days, while for inmates suffering from mental illness, it is 215 days.[3] The most recent figures from the Bureau of Justice Statistics show an 85 percent increase in state and federal prison suicides from 2001 to 2018.[4] Tragically, as many as half of all inmate suicides are committed by individuals suffering from serious mental illness.
Returning to the original question: what can be done to keep an individual suffering from mental health concerns from being incarcerated in the first place? District Attorneys, judges, and advocates across the country, frustrated with their lack of alternatives, have responded with an innovative answer: mental health courts. Mental health courts are specialized courts for criminal defendants who suffer from certain mental illnesses. The typical participant in mental health court suffers from schizophrenia, schizoaffective disorder, bipolar disorder, or major depression and may have co-occurring substance abuse disorders. Participants have generally spent a majority of their life entangled with the criminal justice system and fail to meet the high legal standard of “not criminally responsible.” To be found not criminally responsible, a court must find that at the time of the conduct, a defendant substantially lacked capacity to appreciate the wrongfulness of their conduct or to conform his conduct to the requirements of law. Roughly one percent of all criminal defendants in the United States argue they are not criminally responsible and about one in four are successful in their arguments.[5] Accordingly, mental health courts are likely to accept individuals charged with more serious offenses, including felonies and violent crimes. This allows for the casting of a broad net of eligible participants.
The aim of mental health court is to divert the defendant away from traditional criminal prosecution and provide a more constructive approach including mental health treatment. State legislation generally grants authority to District Attorneys, and occasionally judges, to establish mental health courts in their given jurisdictions. Participants can be recommended to a mental health court by their legal counsel, the District Attorney, or a judge; however, the decision must ultimately be approved by the District Attorney and presiding judge.
Treatment is generally planned and carried out by a mental health “team” responsible for supervising the participant over a fixed period of time. The team will generally consist of a judge, legal counsel for the defendant, a prosecutor from the district attorney’s office, probation/parole officers, case managers and/or representatives from the mental health system. Together, the team works to achieve the general goal of connecting participants with mental health treatment services. Throughout the program participants will meet regularly with the team at scheduled mental health court hearings to check on their progress. When the judge is satisfied that the participant has completed the program, the District Attorney will generally agree to reduce or dismiss the pending charges against the defendant. Additionally, upon completion of the program, the court will connect participants with a fixed mental health provider in the participant’s community to provide continuing prescription medication management, therapy, and further treatment if needed.
Notably, studies have shown that participation in mental health courts generally leads to a lower rate of criminal recidivism in participants than traditional criminal court. In the 11th Judicial Circuit for Miami-Dade County, Judge Steve Leifman, who oversees the mental health courts, noted the rate of criminal recidivism for participants in mental health court is 52% lower than those who partook in traditional criminal court.[6] Further, in Jefferson County, Alabama, in 2020, of the 160 participants enrolled in mental health court, 94 percent of those who completed the program were not charged with a new offense.[7] Another lengthy study in Clark County, Florida, that followed 368 participants of mental health court over three years, found that mental health courts helped participants have lower rates of arrest and probation/parole violations, and successfully reduced the total number of crimes committed by participants.
Research additionally suggests that in the long term, mental health courts may provide net savings to the government and taxpayers. According to the United States Department of Justice, it costs American taxpayers approximately fifteen billion dollars each year to incarcerate individuals who suffer from mental illness. The cost of criminal trials and incarceration of individuals suffering from mental illness is also staggering. This expense could be reduced by increasing the use of mental health courts which generally lead to lower rates of criminal recidivism and diminished sentencing times. Mental health courts also help diminish the need for more expensive types of mental health treatment, such as hospitalization and other forms of inpatient/outpatient care.
With the increasing acceptance of conversations regarding mental health, and the continuance of stories like that of Derrek Monroe, the necessity of mental health courts has never been higher. Over time, mental health courts have the potential to save money and time by reducing criminal recidivism and lengthy incarceration while simultaneously promoting successful integration of participants back into their communities. Accordingly, the American criminal justice system should continue to incorporate more diversion programs to accommodate individuals suffering from mental illness.
Samuel Bourgeois is a second-year law student at Suffolk University Law School and a staff member of the Journal of Health and Biomedical Law. His legal interests include public interest and criminal law. Samuel holds a Bachelor of the Arts in both Spanish and International Relations from Ursinus College.
Sources
[1] Office of Research and Public Affairs, Serious Mental Illness (SMI) Prevalence in Jails and Prisons, Treatment Advoc. Ctr. (Sept. 2016), https://www.treatmentadvocacycenter.org/storage/documents/backgrounders/smi-in-jails-and-prisons.pdf (last visited Sept, 2021).
[2] Id.
[3] Id.
[4] Keri Blakinger, ‘They Should Have Been Watching’: Suicides Rise in Texas Prisons During Pandemic, The Marshall Project (2021), https://www.themarshallproject.org/2021/08/12/they-should-have-been-watching-suicides-rise-in-texas-prisons-during-pandemic (last visited Sept, 2021).
[5] https://www.pbs.org/wgbh/pages/frontline/shows/crime/trial/faqs.html#1 (last visited Sept, 2021).
[6] Michelle Andrews, Mental Health Courts Are Popular, But Are They Effective?, NPR (2015), https://www.npr.org/sections/health-shots/2015/12/16/459823010/mental-health-courts-are-popular-but-are-they-effective (last visited Sept, 2021).
[7] Steven Wallace, Judge: Mental health courts divert individuals from prison to treatment, improve public safety, AL.com, https://www.al.com/opinion/2021/08/judge-mental-health-courts-divert-individuals-from-prison-to-treatment-improve-public-safety.html (last visited Sept, 2021).
Cope v. Cogdill, 3 F.4th 198 (5th Cir.2021)
https://www.nami.org/mhstats
https://www.nursing.upenn.edu/nhhc/nurses-institutions-caring/history-of-psychiatric-hospitals
/https://www.ksby.com/news/local-news/doj-investigation-finds-constitutional-violations-at-slo-co-jail
https://bja.ojp.gov/sites/g/files/xyckuh186/files/Publications/CSG_MHC_Research.pdf
https://www.al.com/opinion/2021/08/judge-mental-health-courts-divert-individuals-from-prison-to-treatment-improve-public-safety.html
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