By Doug Lawrence
The last ten years have seen the growth of many types of diversion courts. These are court-based initiatives that attempt to deal with the root causes of involvement in the criminal justice system. These courts practice a therapeutically-oriented judicial approach. This means the courts attempt to resolve problems that face the defendant first and use punishment second.
The best known form of diversion court is the drug court. Other examples include domestic violence courts and re-entry courts for those returning to society after serving out their prison terms.
A new form of diversion court that is gaining popularity is the mental health court. These courts are developing because of the closing of the mental health institutions, pervasive jail overcrowding and increases in the homeless population. The United States Department of Justice reported in 1999 that 16% of all inmates in state and federal jails had a severe mental illness (schizophrenia and bipolar disorder are examples). 283,000 people with serious mental illnesses were in jail or prison, more than four times the number in state mental hospitals. The average daily number of patients in state and county psychiatric hospital has steadily dropped from 592,853 in 1950 to 71,619 in 1994.
Mentally ill offenders frequently spend unnecessary time in jail and without access to mental health treatment services on release, regularly become repeat offenders and go through the criminal justice system again. The goals of mental health court are to identify these persons as early as possible through screenings and referral of defendants. They also ensure effective legal advocacy for the mentally ill defendant. Other goals include: establishing the most effective and least restrictive treatment options available; supervising the delivery and receipt of mental health services and treatment; and diverting mentally ill defendants with non-criminal or minor criminal charges to community based mental health programs. All of these goals call for effective cooperation between the mental health treatment system and the criminal justice system.
Mental health courts do bring to light some of the problems for the mentally ill defendant. Screening procedures face the problems of accuracy and confidentiality. The requirement to identify and assess the defendants quickly can be incompatible with the need to conduct comprehensive assessments required for a reliable diagnosis. Confidentiality of the defendant would be breached without the consent to view their mental health records. This would mean that participation in any mental health court would have to be voluntary. The degree to which participation is voluntary is difficult to determine when dealing with defendants who suffer severe mental illness. Without first gaining the consent of the defendant, mental health courts can run the risk of coerced treatment.
In San Diego and Los Angeles California, Municipal Courts and Public Defender offices have come together to create a Homeless Court. The San Diego homeless court began in 1988 and evolved from a "Stand Down" to provide services for homeless veterans.
The San Diego homeless court has shown that homeless people did not attend court until the court came to them at the "Stand Down". This was not out of contempt for the justice system, but rather the daily fight for the necessities of life, clothing, food and shelter made it impossible. The fear of receiving fines that they can not pay also keeps homeless people away.
Many times homeless persons lack the proper documentation and resources to put on a proper defense. This, coupled with the fight for survival on the streets, puts them in a poor position to deal with the substantive and procedural issues that a legal case presents. Homeless courts allows the defendant to have their cases heard and disposed of at the same time.
Just as mental health courts put defendants in treatment programs, the sentences in homeless courts are not jail time or fines, but assistance. Defendants will be sent to shelters, receive drug counseling, job placement assistance or other services that will enable them to break the cycle of homelessness and entry into the criminal justice system.
Homeless court also has to be voluntary, because the defendant must get involved with shelters and service providers. This puts the defendant in a posture that will allow compliance with the court orders, and to put them on track to beat the things that resulted in their homelessness.
Between 1989 and 1992, San Diego court records show that 942 homeless veterans who went to court through the Stand Down resolved 4,895 outstanding court cases. In a one year span the San Diego homeless court helped 200 people clear over 500 cases.
The Coalition on Housing and Homeless in Ohio released statistics that on average in 1999 there were 3,080 homeless people in Cleveland. Experts say that a homeless court helps to lower that number considerably as it removes the legal barriers that keep people homeless.
The desired results of diversion courts are to relieve stress on both the justice and prison systems, as well as rehabilitate persons rather than warehousing them. In theory, this creates a stronger sense of justice, because it reintegrates the mentally ill and homeless person rather than shoving them farther away from society.
Editor’s Note: Lawrence is the Program Director of the Cleveland Homeless Legal Assistance Program, which began in Cleveland in August 2000. A new "Mental Health Court" started in Akron in January of 2001.
Copyright NEOCH and the Homeless Grapevine, Issue #46 -2001