Theorizing Mental Health Courts

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention.  Assistant Professor of Law, University of Florida, Levin College of Law. I wish to thank Christopher Slobogin, Dan Markel, Nancy Wolff, Mae Quinn, Michael Seigel, Michelle Jacobs, Emily Hughes, Robert Bernstein, Jennifer Eno Louden, Susan Bandes, John Stinneford, Wayne Logan, Michael Wolf, Jake Linford, Elta Johnston, and Reid Fontaine for their valuable suggestions. The Article also benefited from feedback from participants of the 2011 American Psychology-Law Society Congress and Fourth International Congress of Psychology and Law, the faculty workshop at Florida State University College of Law, the 2010 Southeastern Association of Law Schools Annual Conference, and the University of Florida Levin College of Law scholarship development workshop. I am grateful for the summer grant provided by the Levin College of Law. Finally, I thank Joe Eagleton, Jon Bense, Amber Curtis, Jacy Owens, Courtney Gaughan, and Andres Healy for their outstanding research and editorial assistance. Washington University Open Scholarship 520 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 89:519