Do We Need A Mental Health Court?

Last year, judges blocked a push to create one here. But advocates say they’re better for jails and inmates. Here are the pros and cons, and how the courts work

By Chuck Nowlen

Published July 5, 2003

Copyright 2003, The Capital Times

Mentally ill inmates are the Dane County Jail’s 900-pound gorilla.

Most experts recognize that a huge percentage don’t belong in a facility that’s already bursting at the seams. But county policymakers seem determined to ignore that fact, many experts also insist -- with court and jail resources, as well as public safety, suffering as a result.

“The jail simply is not designed for mentally ill people, and most are arrested for relatively minor offenses,” said Dane County Sheriff Gary Hamblin, estimating that people with significant mental illnesses account for about 17 percent of the 1,000-inmate local jail population.

“Maybe they’re off their medications and paranoid, aggravating both our staff and other inmates, and sometimes causing disturbances. But to put them in a segregation cell with no windows or natural light, for example -- well, that’s not the way to deal with these people, and it might even make them worse.

“And yet, that’s sometimes what we’re forced to do.”

More importantly, said Hamblin, under the existing system, many mentally ill inmates still don’t get the treatment they need to keep them from coming back -- despite a recent doubling of the jail’s bare-bones mental health staff and the establishment of new mental health jail diversion programs.

According to Mental Health Center of Dane County figures, for example, for three years starting in 1995, one woman alone -- a schizophrenic crack addict who was also a prostitute -- accounted for 540 out of 990 days served in jail by a group of 31 mentally ill inmates in one community treatment program.

“We certainly do have our revolving-door cases,” Hamblin notes. “These are people who are in and out and in and out repeatedly.”

Across the United States, a handful of trailblazing communities have all but solved their revolving-door problem, while also getting more out of court and jail budget resources, by setting up special local mental health courts.

In such courts, the emphasis is less on “lock-‘em-up” punishment and more on identifying good treatment candidates, then enforcing treatment to eliminate the root causes of criminal behavior.

In a development here that escaped media attention, Dane County late last year was on the verge of establishing a mental health court. But it was nipped in the bud by local judges.

A committee of local criminal justice and mental health officials had agreed unanimously to apply for a $300,000 federal grant to fund the court.

The committee included Dane County Circuit Judge Gerald Nichol; District Attorney Brian Blanchard; community advocate Robert Bielman, a retired Dean Medical Center internist and former UW-Madison Medical School instructor; David LeCounte, mental health coordinator for Dane County Human Services; Wisconsin Secretary of Health and Family Services Helene Nelson, a former chief of staff for Dane County Executive Kathleen Falk; and Dorothea Watson, representing the Dane County Public Defender’s Office.

The grant application was sent to the scrap heap, however, after Dane County’s eight criminal court judges refused to sign on.

“They principally felt we don’t have the resources for another specialty court,” said Deputy Chief Judge Sarah O'Brien, citing the success of existing jail-diversion programs and a severe state and county budget crisis in which saving existing programs -- not adding new ones -- is now job one for managers.

“The eight judges in the criminal rotation have caseloads already that are nearly unmanageable.”

That doesn’t wash with Dane County Executive Kathleen Falk, who insists that a mental health court would cost the county far less in the long run, streamlining court dockets, while also easing jail overcrowding and making the community a safer, more humane place.

“I actually thought at one time that we stopped jailing mentally ill people in the 18th century,” Falk said. “But apparently I was mistaken in Dane County. We’re smarter than that. A mental health court would be a smarter way to deal with crime.”

How they work

Modeled after specialty drug courts, like the drug court that has drawn rave reviews since it was set up in Dane County in 2000, mental health court judges, prosecutors and mental health staff sort out who would benefit from treatment and who wouldn’t, and which court-ordered options are best.

Most mental health courts are voluntary; that is, no one is forced into the system. But once there, participants are subject to jail or prison if they fail to comply -- a “stick” to accompany the courts’ treatment “carrot.”

Often, criminal behavior is all but stopped in its tracks by enforcing medication regimens alone.

Communities such as Fort Lauderdale, Fla., Seattle and Pittsburgh have setup mental health courts with great success, although the courts have been eyed lately as potential line-item budget cuts.

Even the tax-shy and punishment-happy death-penalty state of Nevada recently established mental health courts in Reno and Las Vegas.

Nevada, too, is reeling under budget-cutting pressures, noted state legislator Shiela Leslie, who also administers the Reno mental health court with Judge Peter Breen, Washoe County’s senior judge.

Reno’s pilot mental health court recently got a $680,000 biennial funding boost from the state after operating for 19 months -- with Breen, the prosecutor, the bailiff, the clerk, and the mental health staff all volunteering to serve without pay over each Thursday noon hour.

“Our DA, and especially our local cops, have really come a long way in seeing that, overall, it’s much safer to have a mental health court operating than not,” Leslie said in a telephone interview. “This has actually galvanized the criminal justice community here. It really has given people hope that there can be a solution to some of these problems.”

Impressive numbers

Leslie cited the following statistics from the pilot court, whose permanent incarnation, also funded in part by a $5 surcharge on local misdemeanor fines, still limits its one-hour sessions to 30 carefully screened offenders each week:

*The offenders were arrested an average of 12 times during the year before they entered mental health court, but only once while enrolled in court-ordered programs.

*They spent an average of 50 nights in jail during the previous year, but only 22 nights while enrolled.

*Ten offenders were sent to a mental health hospital during the year before they entered mental health court, but only one was hospitalized while enrolled.

Leslie estimated the public cost of a day in jail in Reno at about $100, with prison stays avoided saving as much as $20,000 per person per year.

“They’re difficult people to deal with, make no mistake about it,” said Leslie, listing the following “typical” defendant offenses: trespassing, prostitution, battery and domestic violence, car theft, littering, obstructing an officer and burglary.

“The municipal and family courts here were sick of them because they just kept coming back. That’s why triage is so important up front. You need to sort through all the referral possibilities and call to see what system they’d be allowed in, and determine whether they’ll be responsive. Many times, they’re responsive to Judge Breen where they haven’t been responsive to anyone else.”

Told about Dane County judges’ reservations about caseloads and affordability, Leslie said, “That's really unfortunate. The fact is that you probably can’t afford not to have a mental health court -- otherwise you end up just warehousing people in a very expensive jail facility.

“I really would advise a group like that to identify a judicial leader to take charge of this issue, because if the judges don’t believe in it, it won’t work.”

Dane County Circuit Judge Gerald Nichol, a member of the committee that pushed last year’s abortive grant request, estimates that mentally ill defendants account for as much as 20 percent of local judicial caseloads.

“I think judges are slow to change,” he said. “I think that what’s tough for some judges is that things like drug court and mental health court are social work -- they really are. And judges aren’t usually schooled in that.”

Legal barriers

Dane County Drug Court Judge Stuart Schwartz, however, sees another problem with mental health courts in Wisconsin: a recent US Supreme Court decision that deemed it unconstitutional in many cases to force mentally ill defendants to take medication.

“As I understand it, under current Wisconsin law, you can’t order involuntary medications unless certain criteria are met,” Schwartz said. “I think we all firmly support the concept of alternative dispositions to incarceration, particularly for people with mental-health-related disorders.

“But I don’t think (a mental health court) is something we could do here without certain legislation.”

No one in the state Legislature has so far come forward with a proposal that would allow mental health courts, Schwartz added.

He also sees an apples-and-oranges comparison between drug courts and mental health courts, since drug courts emphasize eliminating self-medication, while mental health courts usually emphasize enforcing medication.

Another mental health court skeptic is David Delap, director of the Dane County Community Treatment Program, one of the most prominent local jail diversion initiatives for the mentally ill. Delap wonders whether the county’s mental health agency is equipped to handle an increase in referrals when long waiting lists are already common.

“Don’t get me wrong. I think mental health court has noble intentions – and it’s certainly better than doing nothing,” Delap said. “But something like 1.5 percent of the local population suffers from bipolar or schizophrenic disorder, so that’s, like, 6,500 people.”

He estimated that 2,600 of those might need county services, but in the program, there are slots for only 1,600 people.

“So, at minimum, we’d be 1,000 treatment slots short,” he said.

A mental health court wouldn’t make a dent in the local problem, then, unless county mental health services are dramatically expanded first.

Besides, Delap said, mental health referrals are already common when defendants are brought before Dane County judges, district attorneys and court commissioners.

“We have a pretty enlightened local criminal justice system now,” he said, also warning that many defendants might refuse mental health court out of fears that they would be permanently branded by the community.

“Again, I think mental health court makes sense conceptually. But I also think we could have less stigmatized ways of dealing with the problem.”

Grants or taxes?

Dane County Supervisor Dennis O’Loughlin, however, said jail overcrowding and the revolving-door problem demand a new approach.

“We have to do something,” he said. “It’s just a matter of time before the whole thing explodes.”

O’Loughlin, chair of the County Board’s Public Protection and Judiciary Committee, urged a renewed effort to find federal grant money to finance a local mental health court, adding, “My philosophy, pure and simple, is to get as much as you can.”

County Executive Falk thinks even a tax-funded mental health court could be justified if it ultimately makes existing jail mental health programs more efficient and effective. Already, she said, the county spends the following jail-related property tax amounts, with less than optimum results, in the absence of a mental health court:

*$300,000 for the jail’s mental health staff.

*$360,000 for an Emergency Services Unit that, among other things, expedites non-jail police referrals for mentally ill people who are arrested.

*$500,000 for Delap’s Community Treatment Alternatives program and the county SOAR Case Management Services program, which helps coordinate housing and other basics for the mentally ill.

“So you can see that we’re talking more than $1 million in property taxes alone just for mental illness services either in our jail, for diversion or for programs designed to keep people out of jail in the first place,” noted Falk aide Billy Feitlinger. “And we spend a total of about $25 million on all county mental health services, $11 million of which comes from property taxes.”

Said Falk of tax mental health court funding: “We are a community that is already devoting a lot of resources to the mentally ill now, and if a mental health court is something that would be a good way to reduce jail costs and treat people more humanely and effectively, why would we not do it?”

She emphasized, though, that Dane County should start small with the hope that the capacity of local mental health services will adapt and grow with it.

“This is the way we’ve always done it, with innovations all along,” Falk said. “I think all the stakeholders in this would like to see it work on a small scale first. And if it doesn’t, we can go back to the drawing board.

“Again, it’s using existing resources better, not just adding onto what we already do.”