Progressive justice in the twenty first century: Part Two of a special NPI series

Disclaimer: All posts reflect my own personal views, and mine alone. In my regular job I am a supervising assistant city attorney (a prosecutor who is a manager) for the City of Seattle. I also serve as an adjunct professor of law at Seattle University School, teaching a course entitled "Law, Policy & Mental Health. But I don't speak for either the City or the Law School, or anyone within them.

I want to introduce a concept referred to most of the time as "therapeutic justice". According to the thesaurus on my word processing program, one synonym for "therapeutic" is "healing" The traditional criminal justice system is defined by the two Rs: retribution and rehabilitation.

In my twenty two plus years as a municipal prosecutor, I have come to the conclusion that some criminals are beyond rehabilitation, and retribution is the only tool left. I have also come to the conclusion that rehabilitation within the traditional criminal justice system is inefficient and, if one looks at recidivism rates, rather ineffective for a certain portion of the criminal population.

Enter therapeutic justice and therapeutic courts.

The are three basic types of therapeutic courts: Drug Courts, Community Courts, and Mental Health Courts. I don't have much experience working with Drug Courts, so I'll leave it to others to discuss their pros and cons.

And while I truly believe in the value and effectiveness of Community Courts, the Community Court model does not include the type of law enforcement participation as the Mental Health Court Model. And since I am deeply passionate about - and a staunch champion of - Mental Health Courts, that is what I want to devote the rest of this post and at least the next couple of posts to.

The general concept behind Mental Health Courts is this: if a person is committing crimes based in significant part on a mental illness rather than on a criminal mind, then helping the person manage their illness is both humane and good crime prevention policy.

I will refer to the person charged with a crime as the defendant, because by definition the person is either charged with or convicted of a crime, and "defendant" is the term of art used.

It is worth noting that in Mental Health Court, people are referred to by name, such as Mr. Smith, or Michael Smith, or Ms. Jones or Beverly Jones. It is a much more civilized approach, but for reasons I won't go into here, I believe that using "defendant" is still most appropriate in a traditional court.

I don't want to confuse an insanity defense with Mental Health Courts. Insanity is a legal defense to a crime, based on a person's mental state at the time of the acts charged. The result of a successful insanity defense is acquittal.

Unless the defendant is civilly committed following the acquittal, treatment is not part of the result. Mental Health Courts, on the other hand, are all about treatment. What makes them different is the "players" within the court, more specifically, mental health professionals who know how to navigate the byzantine system of obtaining housing and treatment for those with no money and no health insurance.

In the typical case in a traditional court, the judge orders the defendant to do mental health treatment, and refers the defendant to probation.

Probation gives the defendant a list of providers and the defendant is on his or her own. If the defendant lacks insurance, a support network of family and friends, and a place to live, you can guess how things will turn out.

In a Mental Health Court, a mental health professional assesses what the defendant needs in terms of treatment, housing, food, and funding.

He or she helps the defendant navigate the various funding sources so that the defendant can actually access those services.

Let me end the general introduction here with a few facts and caveats. First, a few useful facts. The first mental health court began in Broward County, Florida in 1995. Right here in Washington, the King County District Court formed the second MHC in the country, followed close by the Seattle Municipal Court's MHC, which was the fourth in the nation.

MHCs come in all shapes and sizes, some of which are more successful than others. The best mental health courts match the culture and needs of the jurisdiction, and thae more explicit goals for which they were formed.

For example, Seattle's MHC differs from King County's, even though they are located within two blocks of one another.

Seattle's MHC tends to serve more of the urban homeless who also have alcohol or drug abuse issues (known as COD, or a co-occurring disorder) while King County's MHC draws its population from unincorporated and from suburban King County.

The demographics are vastly different, as are the approaches.

My next post will give go into detail regarding Seattle's MHC. I'll identify the various roles, how we conduct our business, some of the challenges and criticisms of MHCs and how we respond to them.

And I will also introduce the law enforcement component, along with success stories. I will define success in terms of positive results for the defendant (i.e., a better quality of life and decreased recidivism), as well as positive results for public safety that the public doesn't see (i.e., potentially dangerous defendants suffering from severe mental illness who are prevented from committing violent crimes based on the intervention of the MHC).

I am more than happy to answer questions or engage in conversations about this topic. Please leave a comment below. I will try to include the comment, or at least the gist of it, along with my response.