Criminal Justice / Mental Health Consensus Project

Adjudication

POLICY STATEMENT # 14

Maximize the availability and use of dispositional alternatives in appropriate cases of people with mental illness.

A criminal case can be adjudicated in several ways - the charges can be dismissed, the defendant can plead guilty or be found guilty in a trial, or the defendant can be found not guilty. The law provides several dispositional alternatives specifically for people with mental illness - i.e., incompetent to stand trial, not guilty by reason of insanity, guilty but insane.[1] This document does not make any recommendations regarding how these dispositions are used or the frequency of their use.[2]

Rather, the document addresses other dispositional alternatives to conviction and sentencing that are available under the law. Although known by different names, these alternatives are generally referred to as "adjudication withheld" or "deferred adjudication."

Earlier, the pretrial diversion decision of the prosecutor was addressed. Under the pretrial diversion alternative, the prosecutor decides to hold the charges in abeyance while the defendant undergoes a program intervention. If successful, the charges are dismissed. If not, the case is placed on a court calendar for prosecution. The distinction between that alternative and those discussed here is that in this instance it is a judicial, rather than prosecutorial, exercise of discretion.

There are variations in how jurisdictions make these alternatives available. For example, under Florida law, the court can withhold adjudication "if it appears to the courtthat the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law." The court then orders the defendant to participate in what is called a "community control" program. If the defendant successfully completes the program there is no conviction. Texas law has a "deferred adjudication" provision. Under this provision, once the defendant enters a guilty plea, the judge may defer the proceedings without entering the adjudication of guilt and order the defendant to abide by certain conditions if the judge finds that doing so "is in the best interests of the victim." If the defendant successfully completes supervision, the charges are dismissed.

Recommendations for Implementation

a.		Provide sufficient dispositional alternatives for defendants with mental illness for courts to employ at any stage of the court process.

At least one jurisdiction has established a dispositional alternative for people charged with serious offenses.

Example: The Nathaniel Project, Center for Alternative Sentencing and Employment Services (CASES), New York City (NY)

The Nathaniel Project in New York, NY, run by the Center for Alternative Sentencing and Employment Services, is a two-year intensive case management and community supervision alternative-to-incarceration program for prison-bound defendants with serious mental illness. The program targets defendants who have been indicted on a felony, including violent offenses, most of whom are homeless and suffer from co-occurring substance abuse disorders. Forensic Clinical Coordinators, who are masters level mental health professionals and have expertise in negotiating the criminal justice system, create a comprehensive plan for community treatment. Starting work with participants prior to release, the project creates a seamless transition to community care. Once released, program participants are closely monitored and engaged in appropriate supervised community-based housing and treatment. Participants are required to attend periodic court progress dates. Charges are dismissed upon successful completion of the program.

Key to the success of individuals with mental illness who are diverted from jail or prison under the Nathaniel Project is their linkage to both temporary and long-term housing. The Nathaniel Project has developed relationships with housing providers to ensure that their clients will have shelter upon their release. Housing stabilizes the individual's life and enables the case manager to strengthen his or her relationship with the person with mental illness. Housing for individuals with mental illness should be integrated with support services including mental health, substance abuse, employment, and others.

Intensive case management is crucial in helping clients locate and flourish in supportive housing. Even when housing and services are integrated in a supportive model, many clients may need assistance in availing themselves of those services. A dedicated case manager, with small enough caseloads to devote significant energy to each client, is integral to making supportive housing, and diversion in general, a success.

The mental health courts that have been initiated in some jurisdictions often use dispositional alternatives. These courts focus specifically on cases involving defendants with mental illness, usually targeting only those charged with minor offenses. In some, the charges are dismissed upon successful completion of the program. In others, the defendant is required to plead guilty as a condition of participation but receives consideration at sentencing if the program is successfully completed.

Mental health courts vary greatly in the procedures that they employ, making it difficult to define "mental health court" or to present a mental health court model. It has been noted that "[a]ny similarities among current mental health courts occur more or less by chance at the implementation level and stem mostly from mirror-imaging by new jurisdictions seeking to replicate recently visited mental health courts or to duplicate drug courts."[3] Some have argued against several elements of specialized mental health courts, including requiring the defendant to plead guilty first as a condition of participation, and requiring the defendant to spend a significant period of time under court supervision for a charge that might otherwise bring a very short sentence.[4] Others have argued that mental health courts can be defined as "almost any effort by the courts to better address the needs of persons with serious mental illness who engage with the criminal justice system."[5]

Using that definition, the policy statements and recommendations presented in this document represent a model that does not necessarily require a specialized court and does not limit the population of those allowed to participate. Rather, the model envisions an integration of efforts into existing court practices to balance the needs of people with mental illness who are charged with a criminal offense with the needs of the courts to process the criminal case. If jurisdictions choose, however, to implement specialized mental health courts, then all parties, including the judge, prosecution, and defense, should receive training on available treatment resources and on how to choose which program or service is appropriate for each defendant. Furthermore, it is important that courts work closely with the relevant mental health professionals to ensure that treatment plans developed in the court are successfully fulfilled (see Policy Statement 29: Training for Court Personnel.)

b.		Facilitate the release of mental health information where appropriate for use in a dispositional alternative.

When a case reaches a point where a judge is considering a dispositional alternative, it is likely that some information about the defendant's mental health status will be available in the case file. This might include observations of the arresting officer as recorded in the police report and the information provided for the pretrial release/detention hearing. If the defendant's competency was called into question, there may be a report in the file from a mental health clinician on the defendant's mental health status. Several states have statutes that specifically allow for the disclosure of mental health records in court. In Georgia, records can be disclosed in response to a valid subpoena. In Illinois, a statute allows for the disclosure of mental health records once the recipient of mental health services introduces his or her mental condition as an element of the claim or defense.

Since a dispositional alternative will in many cases be a favorable outcome for the defendant, the defense attorney should carefully discuss with the defendant the advantages and disadvantages of the possible alternative before the defendant agrees to the release of any additional mental health information to the court. In some cases, the defense attorney may find it advantageous to request an assessment of the defendant and provide the full results to the court to facilitate a decision to offer a dispositional alternative. In these cases, release of the information would be with the consent of the defendant. (See Policy Statement 25: Sharing Information.)

Example: Mental Health Court, Broward County (FL)

For possible placement in the Broward County Mental Health Court, public defenders will often ask for an assessment that includes a listing of any medications that the defendant is taking, possible diagnosis, family support, social support, housing, and substance abuse issues. The assessment is done with the consent of the defendant.

[1] Some jurisdictions have replaced the "Not Guilty by Reason of Insanity" disposition with "Guilty but Insane," or some similar variation.

[2] For a discussion of these dispositions, see: American Bar Association, ABA Criminal Justice Mental Health Standards, 1989. Cases in which defendants plead Not Guilty by Reason of Insanity often receive significant publicity, which encourages the public impression that these pleas are commonly used. In actuality, use of the Not Guilty By Reason of Insanity plea is extremely rare. One study in Baltimore City of the circuit and district courts found that of 60,432 indictments filed during one year, only eight defendants (.013 percent) ultimately pleaded not criminally responsible. All eight pleas were uncontested by the state. Jeffery S. Janofsky, Mitchell H. Dunn, Erik J. Roskes, Jonathan K. Briskin, and Maj-Stina Lunstrum Rudolph, "Insanity Defense Pleas in Baltimore City: An Analysis of Outcome," American Journal of Psychiatry 153:11, November 1996, pp. 1464-68.

[3] Henry Steadman, et al., "Mental Health Courts: Their Promise and Unanswered Questions," Psychiatric Services, April 2001, p. 457.

[4] For more on the design and operation of four of the earliest mental health courts established in the United States, see John S. Goldkamp and Cheryl Irons-Guynn. Emerging Judicial Strategies for the Mentally Ill in the Criminal Caseload: Mental Health Courts in Fort Lauderdale, Seattle, San Bernadino, and Anchorage. Bureau of Justice Assistance. April 2000, available at: www.ncjrs.org/pdffiles1/bja/182504.pdf.

[5] Henry Steadman, et al., "Providing Services for Jail Inmates with Mental Disorders," 1997.