Fall 2006

Mental Health Courts: Providing Alternatives to Prison

By Anita Womack-Weidner

The defendant, a man in his mid-40’S, stood before Judge Matthew D’Emic in September and nervously chewed his lip as he waited for the judge’s comments about his progress.

Charged with two misdemeanor assault cases, he was referred to the Brooklyn mental health court (BMHC) after being diagnosed with schizoaffective disorder, a mental condition causing psychosis and mood changes. He had reported having hallucinations and had been hospitalized 14 times. The defendant had also abused alcohol and crack cocaine. His case was diverted from criminal court in February and placed in BMHC, where he hopes to graduate this winter. If he succeeds, the criminal charges will be dropped.

“You’ve done really well,” Judge D’Emic said, smiling. “You should be able to graduate soon. Do you have anything you want to say to the court?”

“Mental illness is no joke, judge,” the defendant said, enunciating each syllable as he shifted his weight from side to side. “No joke.”

Welcome to New York State’s mental health courts. The goal is to provide mentally ill defendants with the treatment, support and structure they need to avoid further criminal activity, while addressing their criminal cases. Defendants whose cases are diverted to a mental health court agree to accept a course of treatment as well as rigorous judicial monitoring. Participation is voluntary and usually requires consent of the prosecutor and judge. The screening process includes, among other things, a psychiatric evaluation and consideration of the nature of the offense. Some courts may exclude violent felonies or specific offenses. Most require a diagnosis of serious, persistent mental illness.

In the beginning, defendants may have to come to court once a week in addition to meeting with mental health and substance abuse counselors as often as every day. Individualized treatment plans are drawn up for each defendant, and those with drug dependence issues are randomly tested. Court dates become farther apart if the defendant makes progress, but meetings with mental health and/or substance abuse counselors remain frequent. Charges may be reduced or dismissed upon successful completion of the program.

An estimated 16 percent of the country’s prison population was reported to suffer from serious
mental illness, according to a 1999 U.S. Department of Justice report. A 2006 study shows about half of all inmates reported one or more symptoms associated with a mental health problem. Many defendants with mental illness also have drug problems. Sometimes a defendant starts out in drug court and is later diverted to a mental health court.

“The saying was that the biggest mental health provider was the jail,” said Judge Mark Violante, who presides in the mental health court in Niagara Falls. “Not here. Our goal is to get them out of city and county jails and into treatment, rather than have them incarcerated and receive no treatment at all.”

Mental health courts are typically in session once a week. Prior to court, there are team meetings (including, e.g., mental health court staff, service providers and counselors) to report on each defendant’s progress, or the judge may receive a summarized report instead. Each court involves a host of players, from the local mental health treatment community to the state and local department of mental health, legal services providers and the district attorney’s office.

Mental health court judges, who otherwise handle a regular mix of criminal cases, strike a different demeanor in the part, complimenting and encouraging defendants when they’ve made strides, but scolding and issuing sanctions when they miss appointments, fail a drug test or exhibit the kind of behavior that got them into trouble in the first place. Sanctions, imposed at the judges’ discretion, range from lectures, curfews or other restrictions, to brief periods of incarceration.

While eligibility guidelines or protocol may vary, all mental health courts seek to balance public safety with defendants’ treatment needs. New York’s mental health courts serve large urban populations such as Brooklyn, as well as smaller communities such as Niagara Falls, a city of about 55,000.

The Brooklyn court, established in 2002 and considered a model, gets many visitors from around the country and abroad. BMHC accepts misdemeanors and nonviolent felonies; violent felonies may be considered on a case-by-case basis. Defendants must plead guilty prior to being accepted into the program, and sentencing is deferred until the program is completed. Judge D’Emic’s longtime law clerk, Karen Kleinberg, helps run the court, which typically hears 100 cases each Tuesday.

In Niagara Falls’ Therapeutic Alternative Court (TAC), a coordinator, Jamie Marcolini, assists the judge. Marcolini has been on the job 10 months but has 23 years of combined experience as a certified mental health and addiction counselor — an invaluable asset when he searches for resources. With Marcolini’s contacts, Niagara officials are able to send defendants to neighboring counties and even Pennsylvania when Niagara services or special housing accommodations are full. “We feel our mental health court is second to none considering the size of our county,” said Judge Violante. “We overturn all stones.”

TAC usually hears 35 to 40 cases each Thursday. Most are misdemeanors, although felonies are also accepted. The court accepts only nonviolent offenses, however, and defendants may even be excluded for prior violent history. A guilty plea is not a prerequisite. TAC originally accepted only adults, like Brooklyn, but when Judge Violante perceived a need in the teenage population, the age threshold became 16. TAC’s program typically lasts 12 to 15 months for misdemeanors. Felony cases can last years, as monitoring continues during probation.

In Brooklyn, defendants who have committed a misdemeanor spend 12 months in BMHC; first-time felons spend 12 to 18 months, predicate felons 18 to 24 months.

“We are not in this business to make the mentally ill cured,” said Judge Violante. “But if we can maintain them, medicate them, closely monitor them for 12 months, then we look forward to releasing them. If their cognitive skills are there, we advocate GED and further schooling. If not, their future is good if we’ve given them the tools.”

There are over 100 mental health courts nationwide, according to the 2006 Survey of Mental Health Courts by The National Alliance on Mental Illness. New York has nine, in Brooklyn, Plattsburgh, Rochester, Buffalo, Niagara Falls, White Plains, Suffolk, Queens and the Bronx. Three more are in the planning stages. Like other problem-solving courts, mental health courts come under the oversight of the Office of the Deputy Chief Administrative Judge for Court Operations and Planning, Judy Harris Kluger, with support from the Center for Court Innovation.

Fall 2006
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Contents Second “Mega-Courthouse” Opens Justice Court Reforms Street Corners Renamed for Court Officers School in New Court Complex Mental Health Courts Domestic Violence Awareness Month Judge Smith Retires Judge Rosenblatt Retires Virtual Library Services Court Programs Broadcast Online Wi-Fi in the Courts Deputy Chief Support Magistrate Court Construction Update Marian Wright Edelman Addresses Conference Historic Courthouses and Trials Did You Know? Judicial Institute (JI) Program Highlights JI Legal Updates