Courts as therapeutic agents: thinking past the novelty of mental health courts.

Persons who have mental illness are over-represented among jail and prison inmates. Efforts have been advancing to stem the flow of offenders who have mental illness into the criminal justice system. The best known initiatives are diversion programs situated within the police department or jail. 4 The mental health court is the newest of these approaches. Although there are currently fewer than a score of mental health courts in the country, the numbers are expected to mushroom with passage of Public Law Number 107-77, which earmarked $4 million for mental health courts in 2002. Mental health courts are analogous to drug courts. Their intent is to reduce criminal behavior and recidivism by treating the illness that is causing illegal behavior. In following the legal theory of therapeutic jurisprudence, these courts are attempting to improve justice by considering the therapeutic and antitherapeutic consequences that “flow from substantive rules, legal procedures, or the behavior of legal actors (lawyers and judges).” Mental health courts, by embracing the principles of therapeutic jurisprudence, become dual agents, representing both treatment and justice concerns. Because of their nascence, there is scant empirical evidence on the performance of mental health courts. Available evidence suggests that recruitment is feasible and engagement in treatment is possible. In advance of the evidence, however, it is important to examine the mental health court model in the context of its likely therapeutic and antitherapeutic consequences and to consider whether there are other ways to engage the court as a therapeutic agent that will yield a better portfolio of consequences.