Therapeutic Justice

Crime, Treatment Courts and Mental Illness

Karen A. Snedker

• Publisher: Palgrave Macmillan
• Year: 2018
• ISBN:
  9783319789026
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book examines Mental Health Courts (MHC) within a socio-legal framework. Placing these courts within broader trends in criminal justice, especially problem-solving courts, the author draws from two case studies with a mixed-methods design. While court observational and interview data highlight the role of rituals and procedural justice in the practices of the court, quantitative data demonstrates the impact of incentives, mental health treatment compliance and graduating patterns from MHC in altering patterns of criminal recidivism. In utilising these methods, this book provides a new understanding of the social processes by which MHCs operate, while narrative stories from MHC participants illustrate both the potential and limitations of these courts. Concluding by charting potential improvements for the functioning and effectiveness of MHCs, the author suggests potential reforms and 'best practices' for the future in tandem with rigorous analysis. This book will be of value and interest to students and scholars of criminology, law, and social work, as well as practitioners.

© The Author(s) 2018

Karen A. SnedkerTherapeutic Justicehttps://doi.org/10.1007/978-3-319-78902-6_1

Begin Abstract

1. Mental Health Courts as the “New Generation” of Problem-Solving Courts

Karen A. Snedker¹

(1)

Seattle Pacific University, Seattle, WA, USA

Karen A. Snedker

Email: [email protected]

End Abstract

Monique , a woman in her early fifties, entered the criminal justice system in 2012 on multiple charges of assault (two separate cases) and a harassment charge. She was heading straight to jail. A plea on her cases ranged from 10 to 90 days ¹ in jail. If Monique had gone through the traditional court system, given her underlying mental illness, alcoholism and housing instability, time spent in jail would probably do little to curb future contacts with the law, contributing to the “revolving door” of criminal justice . But Monique was offered a different path—mental health court (hereafter MHC)—which she accepted. In choosing to participate in MHC, a relatively recent court innovation, Monique avoided time in jail, was linked to critical social and treatment services and cleared her criminal record. At her graduation from MHC, she was hopeful about her future trajectory.

One afternoon in 2014, Monique was sitting in the gallery of a criminal courtroom waiting for her case to be called for the last time. As the presiding judge called Monique’s case and Monique found her seat next to her defense attorney, it was clear to her—and to many of us—that this was not a regular court review. After two years on probation, Monique was about to graduate from MHC. She was smiling but obviously a bit uneasy as the gravity of what was to come sunk in. The presiding judge asked to first hear the probation report. Monique’s probation officer addressed the court with what turned out to be a long monologue recounting her path, recognizing her struggle and praising her ultimate success. The city prosecutor also expressed pleasure with Monique’s accomplishments and then requested that the court dismiss all charges. The defense attorney joined in the acclamation, highlighting Monique’s commitment to court requirements in spite of a long and arduous path. The judge proclaimed, “I want to congratulate you. I know it has been hard. You persevered through the difficulties and you continued on. The Court is happy!” Then the judge stood up, stepped down from the bench, and shook Monique’s hand, congratulating her and giving her a certificate of completion. Beaming, Monique held up the certificate and exclaimed, “It makes it official!” She is now legitimately done with MHC and the charges that brought her into court were dismissed.

Everyone in the courtroom laughed and clapped. Once everyone was back in their seats, the judge invited Monique to say something to the court. Slightly nervous, she addressed the judge, “I am really grateful to the court and probation. I talked to a lot of people, they told me to do the time and not to spend two years on probation. But the time I spent in jail motivated me not to go back [to jail].” She detailed the support from her treatment provider and probation officers. She concluded by thanking the court and all the lawyers who contributed to her accomplishment, exclaiming “I did not do this by myself!” Monique exited the courtroom happy to be free from criminal justice interference in her life.

What happened in court that day may represent the dawn of a new era in the history of criminal justice. The success of Monique’s journey through MHC, despite parental death and abandonment, teen pregnancy, mental illness, and chemical dependency issues, owes to her strong motivation. But features of the court structure and culture were also pivotal to her success. A supportive team, balancing accountability through frequent monitoring and creative sanctions, worked together to alter Monique’s trajectory and help make her graduation possible. From Monique’s perspective, the court was helpful despite her early hesitation to opt-into the court. In the end she was proud to have successfully managed to fulfill the court obligations and felt optimistic about her life.

Monique’s case (detailed more extensively in Chapter 6) highlights that how law operates in people’s lives can have powerful effects. This book examines the complex relationship between mental illness, criminal behavior and the legal system within MHCs. The book’s approach draws on the longstanding area of social inquiry that explores the relationship between law and society . Whereas a strictly legal approach focuses on the crime, legal facts and redress, a sociological approach focuses on the social construction of mental illness, the people who are mentally ill in the criminal justice system and public policy responses. Studies adopting a socio-legal orientation go a step further, treating the law as a human product which is shaped by social institutions and culture, examining how the larger political and social context influence the legal sphere and those positioned within it. In the case of the criminal justice system, socio-legal scholars address questions related to the impact of reforms and innovations within the law on practitioners (e.g., legal actors), recipients (e.g., defendants, victims) and society at large and explore how those same individuals, groups and organizations shape laws and produce legal change. It is the process that is being sought after in the spirit of Roscoe Pound’s renowned proclamation of “law in action” ² that brings the social effects of law into center view.

The use of socio-legal framing underscore this book. I see the law and legal system as a political, economic and cultural phenomenon and like others rely primarily on qualitative research methods to see how law works on the ground (Ewick and Silbey 1998; Lens 2016; Nolan 2001). This study explores law as an institution and as a behavioral system (Sutton 2001) with a focus on a specific penal innovation: problem-solving courts, which include MHCs. Used as an umbrella term, problem-solving courts refer to a different understanding of a case as a “problem to be solved, not just a matter to be adjudicated” (Berman and Feinblatt 2005, 5). The design of these courts specifically address certain types of crimes (e.g., drug charges) and categories of offenders (e.g., people with mental illness and/or substance abuse issues) and embrace a treatment orientation. Examining how these problem-solving courts—with a specific focus on mental health courts—are structured, culturally defined and practiced reveals broader trends within society. This book uncovers insights about the relationship between law and society, between different categories of people in the legal system and the everyday workings of the law. Before detailing the emergence of problem-solving courts and MHCs specifically, I first provide a brief historical discussion of punishment practices in the United States, highlighting an important shift in penal policy through these court innovations .

Shifting Punitive Penal Practices

Historically, laws and criminal justice practices have oscillated between rehabilitation and punishment, only infrequently settling on a balanced ideal between the two imperatives. In the nineteenth century, reformers responded to the number, or perceived number, of people with mental illness in jails and prisons by campaigning for specialized facilities leading to a decline in jails and prisons (Torrey et al. 2010). In the beginning of the twentieth century, reforms moved toward treatment and rehabilitation in the legal arena. This is best illustrated by the birth of the juvenile justice system, created by Progressives in 1899 to specifically address the needs of a special class of offenders. The progressive argument was that young people’s age and level of development demand differential treatment in the name of justice. This progressive reform reflected an understanding of criminal behavior in juveniles as at least partially related to broader external social forces, especially family functioning and structure. This orientation necessitated differential treatment of the young, notably specialized procedures and punishment (Erickson and Erickson 2008). While drawing parallels to the juvenile court system, Berman and Feinblatt (2005) also highlight the distinctiveness of problem-solving courts which addresses some of the pitfalls associated with court treatment of juveniles. Notably they reference the role of the defense attorney, greater accountability, measuring effectiveness and realistic expectations. These changes in structure and function draw insights from earlier progressive agendas.

For most of the latter part of the twentieth century and the early part of the twenty-first century however, American criminal justice has tended to err on the side of punitiveness informed by a “culture of crime control” (Garland 2002). From this standpoint, crime is viewed as a serious social problem that needs to be tightly controlled and punished. This “grand social experiment” of increasing punitiveness is what Clear and Frost (2014) call “the punishment imperative.” This “new penology” (Feeley and Simon 1992) of crime control is centered on the management of the crime problem, shifting the focus away from rehabilitation and toward more efficient means of control and penal severity. This trend is evidenced in policies such as “three strikes laws,” “mandatory minimum” and “truth in sentencing” guidelines, and trying juveniles as adults in criminal proceedings. At the local level, the popularity of the “broken windows” theory (Wilson and Kelling 1982) among politicians and police enshrined a putative link between low level criminality and more serious criminal behavior. On the streets, this led to policy changes whereby police targeted minor level offenses in response to growing concerns about crime, social decay and physical disorder. The law—as it often is—was thus called upon to address a series of social problems not all of which were directly related to crime. The results were a far cry from the rehabilitative ideals of the past.

The devastating “drug wars” and a general fear of crime were clear factors in the new penal regime focusing on expanding the so-called “prison-industrial complex” ( see Selman and Leighton 2010). It was not merely rising crime rates that fueled increasing rates of punishment but the framing of crime as out of control and politically charged definition of crime as a major social problem (Beckett 1999; Clear and Frost 2014; Garland 2002). The forcefulness of this shift in response to crime was driven by media accounts and the politicization of crime that influenced changing public discourses on c...