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Excerpted From: Courtney Black, Mental-Health Courts: Expanding the Model in an Era of Criminal Justice Reform, 63 Washington University Journal of Law & Policy 299 (2020) (163 Footnotes) (Full Document)


In December 2018, federal criminal justice reform gained public attention when Congress passed the First Step Act. The First Step Act was passed with bipartisan support, signaling that the United States has recognized the need for massive criminal justice reform.

The necessity of criminal justice reform, at both the state and federal levels, is largely attributed to the current size of the prison population in the United States. Criminal-law changes, social changes, and economic changes have contributed to the current size of our prison population, which is over 1.5 million prisoners. The United States is said to be facing mass incarceration.

The number of people with mental illnesses who are incarcerated has increased along with the total prison population. For example, the Department of Justice (DOJ), which publishes data on mental illness in prisons, has reported high levels of serious psychological distress, depression, and bipolar disorder among U.S. prisoners. Prison conditions and recidivism rates also indicate that the mental-health services currently offered in prisons are inadequate to help this segment of the prison population.

Mental-health courts and early-release programs are two mechanisms of social reform created in response to these issues. Currently, mental-health courts function at state and municipal levels to divert eligible offenders from the criminal justice system to community treatment services. The mental-health courts function through a team of lawyers, judges, and case workers who emphasize rehabilitation. As currently designed, individuals charged with a crime may access the mental-health courts through referrals, but prisoners cannot.

On the other hand, early-release programs release eligible prisoners before the completion of their sentences. While early-release programs were once being phased out by many states, they have reemerged because of large prison populations, long sentences, and high incarceration costs. Academic studies on early-release programs have analyzed different state approaches to identify metrics that contribute to early-release program successes and failures.

At the state level, Texas is a leader in criminal justice reform. It has both mental health-courts for defendants and an early-release program for mentally ill prisoners, which divert individuals to community treatment services. Other states also have mental-health courts, but they do not have early-release programs comparable to the Texas model. These states have thus missed the opportunity to further reduce prison populations by diverting prisoners away from inadequate correctional care.

This note proposes that state legislatures should expand access to mental-health courts so that mentally ill prisoners can (1) be referred for early-release consideration, (2) have the assistance of the mental-health court team to transition back into the community, and (3) receive community treatment services. Specifically, states should expand the authority of mental-health courts to hear current-prisoner cases, define the referral process for prisoner-participants, and define the mental-health court team for prisoner-participants. Additionally, this note identifies four structural decisions for state legislatures to address before implementing or expanding their mental-health court statutes. These decisions involve the funding of treatment services and defining eligibility. This note will use Texas's statutes to guide states through such statutory reform.

Part I of this note overviews mental illness in United States prisons, criminal justice reform, the prison population, and correctional mental-health services. It also introduces the mental-health court and early-release program models, and it provides Texas's statutes as examples. Part II analyzes the Texas statutes and makes proposals for states that do not have early-release programs for mentally ill prisoners.

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By expanding access to mental-health courts, prisoner-participants would gain the assistance of the mental-health court team to transition and receive community treatment services. This is especially true for states that do not have early-release programs for mentally ill prisoners. Additionally, specific provisions of Texas's mental-health court statute should be amended as a guide for other states. Texas should expand the authority of the mental-health courts to hear current-prisoner cases, define the referral process for prisoner-participants, and define the mental-health court team for prisoner-participants.

Additionally, state legislatures should approve structural changes as they amend their mental-health court statutes. These decisions involve which offenses make prisoner-participants eligible, if prisoners must serve an amount of time before becoming eligible, and if funding for treatment services will come from the correctional facility or the prisoner-participant.

The Texas legislature has adopted one approach to reform by separating programs for mentally ill defendants (the mental-health court) and prisoners (MRIS). While most states have enacted mental-health courts, not all have early-release programs for mentally ill prisoners. To resolve this gap, mental-health courts and early-release programs should be tied together. This combined model focuses on carrying over to the mental-health court the positive characteristics of Texas's early-release program. Additionally, the proposal focuses on expanding mental-health courts, rather than creating an entirely new program. This is both efficient and politically beneficial.

Expanding the mental-health court model as proposed presents an opportunity for spreading the model's successful outcomes into the correctional context. First, the mental-health court's diversionary nature reduces the current prison population rather than only limiting future growth. Its focus on mentally ill prisoners targets the large mentally ill prisoner population and diverts prisoners from inadequate treatment in correctional facilities. Second, adopting the referral process that mental-health courts and Texas's MRIS program use ensures that people who know the prisoner's mental-health needs can be advocates. Third, adequate release assistance is achieved by creating mental-health court teams for prisoner-participants rather than adopting the MRIS supervisory plan. The proposed team provides prisoner-participants with a case worker to assist with accessing treatment services and a judge to monitor their program progression.

A significant benefit of the mental-health court is that, as a problem-solving court, it targets the underlying source of crime to prevent future crime. Preliminary research demonstrates that mental-health courts are also effective at reducing recidivism. Expanding mental-health courts therefore presents the opportunity to reduce recidivism among prisoners, which is especially important because recidivism is a significant concern for mentally ill prisoners.

Ultimately, the large U.S. prison population, sizable mentally ill prisoner population, and inadequate correctional treatment services indicate a serious need for criminal justice reform. Because the national prison population is largely comprised of state prisoners, state reform has the potential to create the largest impact. Our country's political climate, which is more tolerant of criminal justice reform and helping mentally ill prisoners, further indicates that the present is an ideal time to pursue additional reform.

J.D. (2020), Washington University School of Law.

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