Read a Pacific Northwest, liberal perspective on world, national, and local politics. From majestic Redmond, Washington - the Northwest Progressive Institute Advocate.

Monday, September 29, 2008

Progressive justice in the twenty first century: Part Three 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.

If you've continued to read this series, you are probably wondering when I'm going to get down to some details about Mental Health Courts (MHCs). Your wait is over.

First, let's go over some ground rules:

1. Everyone is presumed innocent until proven guilty beyond a reasonable doubt.

2. A person charged with a crime is referred to as the defendant at all stages of the criminal proceedings. We (yes, I include myself as the prosecutor) try to avoid that term in MHC out of respect for the therapeutic and respectful nature of the court, using the work "client" instead. But sometimes it cannot be avoided, and from the prosecution's perspective, the defendant is an adverse party, not a client.

3. At least with Seattle's MHC, anybody who wants to exercise their right to a jury trial can do so anytime prior to entering into a case resolution (referred to as a "disposition"). That is no different than for a defendant in a traditional court.

4. Those who decide to take advantage of MHC must give up their right to a trial. The manner in which that occurs complies fully with an individual's right to due process and effective assistance of counsel.

Now that the preliminaries are over, let's take a look at some specifics. Most defendants in MHC start out in custody after having been arrested for a crime and booked into jail. The defendant gets arraigned--identified, advised of the charges, and asked to enter a plea, which at this stage will be "not guility".

The public defender's social worker and a neutral mental health professional hired by the court, called the MHC liaison, talk to each potential MHC client to assess whether they suffer from a major mental illness, have or had mental health services within the community, and would like to participate in MHC.

If the defendant is willing and mentally capable of signing a release of information (ROI), the defense will set the case over to MHC for a "looksee". The defendant receives the same due process as any other defendant in a traditional court, except that the courtroom setting is probably more calming than the jail courtroom.

Prior to each court session, the prosecutor, public defender, court liaison, public defense social worker, and the two MHC probation counselors sit down and discuss each case. (If a defendant has an attorney other than the public defender assigned to MHC, then the prosecutor, MHC liaison and MHC probation will meet separately with that attorney; the defendant's privacy is protected.) The purpose of the pre-court conference is for the prosecution and defense to determine whether to offer MHC to the defendant.

From the prosecution perspective, public safety is paramount; the prosecution will not offer MHC to a defendant that appears to pose a public safety threat unless MHC is reasonably likely to decrease or eliminate that threat. There must be a treatment plan that is reasonably likely to work, that the defendant is willing and able to comply with, and that can be monitored regularly, as in weekly or more often.

From the defense perspective, they must discuss options with the defendant,pointing uytut the benefits and risks involved.Two competing outcomes are, of course, getting out of jail more quickly, on the one hand, and getting housing and treatment and a chance at a better at the cost of strict monitoring. The choice to seek help from the MHC belongs 100% to the defendant, taking into account the likelihood of success vs. the likelihood of failure and increase jail time as a result of new crimes and/or probation violations

Next up--"A Day in the Life" of an MHC defendant.


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