In jurisdictions where the law enforcement recommendations presented in the previous chapter are implemented, a great many people with mental illness who are currently brought to the court system for possible criminal prosecution will instead be diverted to an appropriate placement in the mental health system.  For those who are referred for prosecution, the following policy statements and recommendations describe improvements courts can make that will assure that justice is served while meeting the needs of people with mental illness. 

The extent to which these improvements can be made depends upon the level of services currently available in a jurisdiction.  These policy statements and recommendations are written with two assumptions.  The first is that the policy statements and recommendations contained elsewhere in this document pertaining to enhancements to mental health services are implemented (see Chapter 1: Involvement with the Mental Health system and Chapter 7: Elements of an Effective Mental Health System).  It would be counterproductive for the court to enhance its referral capacities with no enhancements to existing mental health services.  The second assumption is that the jurisdiction provides such services as early appointment of defense counsel; a victim assistance office; pretrial diversion through the prosecutor's office; and a pretrial services program that provides information and options to the court at the initial bail-setting hearing.  Many jurisdictions do have all these services, and should be well positioned to take immediate advantage of the recommendations outlined here.  Many other jurisdictions lack one or all of these services.   Even in such jurisdictions, it would be possible to implement incremental change that could still have a dramatic impact on how the criminal justice system responds to people with mental illness. 

The text includes many examples of initiatives jurisdictions have taken to improve the processing of people with mental illness through the courts.  The inclusion of these examples is not meant to imply that jurisdictions need expensive new initiatives to make improvements.  In many instances, simple adjustments to existing procedures can be very effective.

Several of the events discussed in this chapter - appointment of counsel, consultation with victims, prosecutorial review of charges, and pretrial release/detention hearing - all occur early in the life of a criminal court case.  There is, however, no single process employed in all jurisdictions for when a criminal case is filed in court.  In some, the defendant is appointed an attorney even before the prosecutor has reviewed the charges, or the two occur simultaneously.  In others, the appointment of counsel does not occur until much later in the process.  In some, the pretrial release/detention hearing occurs well before either appointment of counsel or prosecutorial review of charges.  In yet others, contact with victims occurs even before any of these steps.  The appointment of counsel is presented here first since so much of what is being recommended in this document depends on consent of the individual for the release of mental health information, and because consent should not be sought without first offering the person access to an attorney.