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Battling Against the Criminalization of Persons With Mental Illness: A Matter of Social Justice

Clearly, it is more than time to lead a nation forward in putting an end to stigma and the understanding that mental health is not only essential to overall health -- its prioritization is a matter of social justice.
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Broward's Mental Health Court began as a community-based court of conscience. In 1997, a collaborative criminal justice/mental health local effort led to this specialized court innovation. Searching for solutions to the revolving door phenomenon of the criminalization of persons with mental illnesses, this court-based strategy was essentially the best we could do. Like all local jail systems, Broward's was and still is negatively impacted by a broken and chronically underfunded community-based system of behavioral health care. Years before, a small group of criminal justice leaders and mental health advocates assembled to seek change. Our local jail system was over-crowded with persons arrested with serious mental illness, a Federal Class Action was pending, and our courts were ill-equipped to respond to this population's complex needs.

I was lucky. A former attorney from the Florida Protection and Advocacy for Individuals with Mental Illness (PAIMI) arrived to the bench at the same moment when the winds of change were already in place. The vision and mission of our community were very clear. We had no funding, no grants, no staff; yet we realized the urgent need "to do something." Broward's Mental Health Court (a sub-division of my regular criminal division) would be our something. It would be voluntary, therapeutic, recovery focused and driven by a human rights philosophy that people who are mentally ill should not end up in jail primarily due lack of mental health treatment and services.

Armed with passion and a foundation tied to a broad understanding of mental health and disability rights law, the legal architecture would co-exist with psycho-social principles of psychiatric Rehabilitation (Boston University, Center for Psychiatric Rehabilitation) and the current evidence base. Procedural justice technologies, together with humanistic goals, guided Therapeutic Jurisprudence (the science related to the question of whether courts act as "agents of healing") were braided into traditional criminal justice process and procedure. Our community mental health and substance abuse treatment and service providers would centralize scarce community resources within court process.

This part-time court was the Model for Federal legislation in 2000 (The National Mental Health Demonstration Act). It has saved countless lives, tended to trauma, mitigated stigma and structurally bridged huge gaps in our community system of care. Recently, a woman, having no business in the court, stopped in to meet someone. It was at a moment when we were in the process of reuniting a lost relative with their family member. Many people with serious mental illness become lost. Last week, this relative drove hours to the courthouse to pick up her close relative. It would be the third reunification the court facilitated within a month. At this court hearing, we were all working energetically to research and connect the family member to mental health services in his new location. We were joyous. The visitor turned to her colleague and asked, "What kind of court is this anyway?"

Our jails and prisons are overrepresented by individuals with serious mental illness who are unable to reasonably access community-based treatment, services and housing. It is well settled that our nation's jails and prisons have morphed into defacto psychiatric hospitals. It is equally well settled that early intervention, integrated community treatment and supports often lead to recovery and a life of purpose and productivity. It was no coincidence that three months after the establishment of Broward's Mental Health Court in September 1997, former Director of The National Institute of Justice, Jeremy Travis, addressed the National Association of State Mental Health Directors, acknowledging "A shift in attitudes regarding crime and justice" referring to "mentally ill offenders who commit minor, quality of life offenses..." As he discussed, "The decreases in public resources for treatment, training and health services; the public attitude that criminal law should be used to solve social problems that are better defined as public health or mental health problems." Former NIJ Director Travis then warned about new emerging tensions between problem solving, community policing and tough on crime legislative sentencing policies that would ultimately lead to new challenges.

As distinguished President of John Jay College of Criminal Justice, President Travis was recently appointed to serve as chair of The National Research Council, (National Academy of Sciences) tasked with studying how best to reduce mass incarceration in America. Now, there exists a compelling opportunity to complete the dialogue begun so many years ago, as to how to solve the human stain of the criminalization of persons with mental illness in America, and break the research silos, which in my view have inadvertently kept these policy and research agendas segregated.

Clearly, as history illustrates, problem solving therapeutic courts, like Mental Health Courts, were never intended to be a substitute for public health policy and funding of our nation's behavioral health care community-based delivery systems. As a former member of The President's New Freedom Commission on Mental Health (Criminal Justice Sub-Committee Chair), the causation of those factors which lead to untreated mental illness and negative consequences, which include incarceration, are well settled. It is time to integrate the mental health policy deficits and resulting criminalization narrative of persons with mental illness, within the National Research Council research agenda. To view these social injustices from a public-health lens. Clearly, it is more than time to lead a nation forward in putting an end to stigma and the understanding that mental health is not only essential to overall health -- its prioritization is a matter of social justice.