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The Paradox of Incorporating Mental Health Treatment into the Criminal Legal System

National Public Radio recently did an interesting article ( on the troubles facing Seattle when it comes to those facing mental health challenges in the criminal justice system there. One of the main critics of the recent rise in alternative options for those charged with crimes who also face mental health issues is a Judge there who feels that the attempts by prosecutors to reduce penalties to those with these challenges undermines the leverage the system would othewise have. In his mind, the options should essentially be lockdown treatment facility or significant jail time.

I have long been an advocate of accountability courts and other alternatives to traditional prosecution of crimes when it comes to those facing mental health challenges, but I've also come to the realization that while it is a major advancement to start spending money in this area, we haven't really come to ask what is our endgame in diverting these cases. Yes, it feels good to know that we aren't immediately labeling these men, women and young adults as criminals, but are we really accomplishing the goals of keeping them out of the criminal justice system or just brushing the surface? In my mind, there are two main considerations that are going unaddressed in this area.

The first is the most important and far more fundamental concern: what are we asking these individuals to do? Having been exposed to countless cases, clients, judges, and accountability courts, both from the outside and from within, I can say without reservation that the primary concern of the court system more than anything is that they are "taking their medications." From what I have seen, this is how the courts view success. Taking medications = staying out of the criminal justice system.

To a great extent, this may be true. Psychotropic medications inarguably address some of the more severe symptoms of a person's mental health challenges. At the same time, their intended effect is oftentimes, and quite literally, a difficult pill to swallow. Talk to most people who have to take antipsychotic or mood stabilizing medications and the feedback you'll get many times is that it simply doesn't feel good. It slows thinking, dampens creativity, puts a person in a fog. Yes, it allows the same individual to interact with society, but it forces them to accept the effects of a medication of which most of the rest of us wouldn't dare experiment.

And therein lies the first paradox: it is "the rest of us" who are demanding that these individuals take these medications without having any personal understanding as to how they make a person feel. This lack of empathy does not create the type of rapport necessary to dig deeper with diverted defendants; to gain a better understanding as to how their individual minds work so that the foundation of treatment runs deeper than a simple decision to take or not take a pill. The courts need to shift the focus of their goals from medication compliance to something far more comprehensive that reflects the empathy and understanding necessary to gain these folks' attention and dedication to managing their challenges.

The second consideration is lack of desire of most prosecuting authorities to take on the higher risk participants into their programs. In other words, most accountability courts shun defendants facing crimes of violence, the types of crimes for which our communities would seemingly be most concerned.

I believe there are two reasons for this. One is very simply that the elected prosecutors still can't shake that idea of being soft on crime. Even with all of the advancements in understanding and progress with accountability courts and alternative sentencing, being "tough on crime" is a cliche that won't go away. In these cases, we suddenly forget the whole point of alternative sentencing and fall back on the idea that there have to be consequences such as prison time for bad choices, an idea that flies in the face of what truly motivated the actions that led to an arrest in the mind of someone struggling with mental health issues. The other reason is that many of these programs are audited for success and minimal recidivist rates, and taking on higher risk clients may mean worse numbers, which might cut their funding or close their programs altogether. This is a myopic point of view that really undermines one of the whole missions of these programs from the start, which was to make our communities safer all while freeing up law enforcement to focus on true criminal offenders.

All of this is to say that while I remain committed to supporting incorporating treatment as an answer to these problems in the criminal justice system, we need a far more surgical approach to each individual, not the buckshot we've experienced to this point. And time is also a consideration: the longer it takes us to understand the fundamental changes needed, the better chance some politician grows weary of the lack of progress and sends us back to the dark ages.

The Gage Law Firm Mental Health and the Law Blog
The Gage Law Firm; Mental Health and the Law

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