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Madness and the City Brooklyn Mental Health Court as a Case Study in Minority Protection Strategy

 

New York, New York

The strains of Mozart wind their way from ear to ear down the line of Central Park benches, inducing sleep in some, foot-tapping in others, and in the 350-lb man on rollerblades – dainty pirouettes. Goggle-glasses afloat on fiercely bobbing head, features rapt in pungent concentration, our man is briefly entertainment amongst that crowd in whom Mozart induces dinner-party reflexes, but frankly, mostly – he is ignored.

New York tolerates its crazies with much better humor than other cities. “This city can drive you mad” – the majority of people we questioned spontaneously on morning subway trips agreed. Anxiety, stress, density of population, tough social system – all make for an unusually large number of mentally disordered citizens, often visible on the streets as smelly, eccentric figures who mutter angrily to themselves, preach, sell batteries, dig through garbage, sing out loud or just ask strange questions to random people in the subway (. Some attributed the disproportionate visibility of madness to the city’s legendary intensity. “There’s much more of everything on a small island like Manhattan, good guys as well as bad ones” – two elegant, fast-talking New Yorkers opined authoritatively. 

Yet even the Big Apple has its limits. When pirouettes in the park become misdemeanors or even violent crimes, all bemused sympathy and cool disregard goes by the wayside. “You have to lock them up, isolate them; they are dangerous. You have to put them under control. I wouldn’t be happy if one of them lived next door,” a casually-clothed gentleman in his sixties asserted fervently when we stopped him in front of the Kings County courthouse.   

Despite its visibility on the streets, madness is a silent minority in America and one with little prospect for a civil rights movement. Judicial solutions to minority issues are historically problematic, yet there is a new judicial movement brewing. Here we analyze the ethical distinctiveness as well as the effectiveness of the solution offered by these new courts, in contrast to the mainstream judicial system, as a case study in American minority management. 

Mental health courts: an experiment in holistic healing

In January 2002, the Brooklyn Mental Health Court (BMHC) was founded in Kings County, New York as an alternative to the traditional court system for mentally ill defendants. Shepherding defendants through aggressively monitored, long-term treatment programs, in lieu of incarceration, the court ascribes to a problem-solving model. This model  has proliferated nationwide since the first demonstration project, a “drug court,” opened for business in Dade County, Florida in 1989. 

The BMHC proposes to deal with the greater vulnerability of the mentally ill within the criminal justice system. De-institutionalization trends in mental healthcare over the past 50 years have increasingly moved patients out of rigidly coercive hospital systems into out-patient day programs. These programs purport to increase participants’ control over their own lives—yet state institutions have downsized, without funneling that money into community-based care. Many of those in need of sustained long-term care are consigned to cycle in and out of emergency rooms, a process termed “revolving door care.” Meanwhile, the number of inmates with mental health conditions is on the rise, leading some critics to hypothesize a well-worn path from hospital to prison, ironically dubbed transinstitutionalization. “Because people never get the right long term care,” explains Lucille Jackson, Executive Projects Director of the BMHC, “the court system has become the hospital of last resort.” 

Problem-solving courts – encompassing drug courts, community courts, domestic violence courts and re-entry courts – seek to extirpate the causes of crime at the roots, instead of merely cycling convicted criminals in and out of a prison system that statistically only adds more dirt to the wash: only 17 percent of the state inmates estimated to require mental  health care receive it in prison, and 49 percent of federal prisoners with mental illnesses have three or more prior probations, incarcerations or arrests, compared to only 28 percent without mental illnesses. 

At the foundation of these new courts lies a conviction that Bruce J. Winick, Law Professor at the University of Miami, and  prime  and a major architect of the mental health court model,  conceptualizes as therapeutic jurisprudence. In practical application,  as Jackson explains, it is the principle that “people should not be made worse by the system they’re in.” Yet equally fundamental to the ideological structure of the new courts is a sense that the criminal justice system should dole out not only individual rehabilitation, but community restitution. 

Cozy little thing called court

It is morning; we enter the imposing Brooklyn Supreme Court building, welcomed by multiple guards and the birdsong of metal detectors. We enter the cozy, warm-colored room of the Mental Health Court. No one seems to be in rush. A defense attorney is feeding her client’s baby in the second row of the audience. The judge wishes one of the officials happy birthday. The prisoners are free to walk about the room and directly approach the judge’s bench. “I can talk to defendants, get a little involved with them during the treatment, whereas in a traditional institution I would just take them out of prison, bring them here and bring them back after the trial,” says court officer Drew Feinberg. 

Not all defendants with mental problems can count on ending up in such surroundings. Case referrals may come from anywhere: another judge, the defendant’s attorney, even the D.A. himself. The alternative mental court employs a strict selection procedure, involving negotiations between the presiding Judge, the D.A., the defense attorney, and the victim in order to evaluate whether the defendant is capable of going through treatment rather than incarceration. The level of risk the defendant would pose to the community once under treatment, as determined by both a psychiatrist’s and social worker’s evaluations, serves as the deciding factor. 

If all parties are in agreement, the case is transferred to the BMHC, where the defendant must enter a guilty plea and receive 1-2 years treatment under strict monitoring in lieu of a prison sentence, officially making the transition from defendant to ‘client.’ Court social workers and a case manager outline a treatment plan, implemented through a combination of community health care providers, job-training, educational and housing services, as well as frequent visits to the court to monitor the client’s progress – as often as bi-weekly. Interactions with the judge are informal – “What kind of music are you listening to?” – and the client’s voice carries as strongly as his lawyer’s. 

“My client doesn’t believe he needs his medicine, your Honor, so he isn’t taking it.”

“Well, apparently my clinical team agrees with him. He’s asymptomatic.”

The court offers plaudits for all progress, no matter how incremental, with certificates and applause, but the largest carrot dangles luminously at the end; upon completion of treatment, the guilty plea will be vacated and the charges dismissed, though sometimes conditionally or with probation. Should the client fail, however, a heavier prison sentence is inevitable. 

The Wind of Ethical Change

The unique structure of the court, however, seems to be a veneer for deeper difference in ethical principles, implemented on both a personal and community level. 

Redefinition of Personal Identity

The BMHC aims to create a space outside of the time-pressured and mechanical case-by-case approach of the traditional court. “Instead of being impersonal and focusing on punishment, the BMHC tries to promote a more individual approach to every case and treat all the participants in a trial as people,” says defense attorney Joyce Kendrick.

Gaining the trust of the defendant is especially crucial at the initial stage, to overcome the client’s fear of being labeled as mentally ill. “We ask them to give us a chance, that it might help them,” continues Kendrick. There is a stick next to the carrot: a charge with a serious crime in the case of defendant’s disagreement. The goal is to make “the person himself want the treatment to happen,” adds Kendrick.

The distance between the offender and victim is also reduced. The decision to admit a person to treatment is made in consultation with the victim. “In every case, both felonies and misdemeanors,” says Dave Kelly, the Assistant District Attorney (A.D.A.) in Kings County. “You would be surprised how often they are agreeable and willing to help the offenders.” This facilitates the forgiveness. Sometimes even the orders of protection given to victims of serious crimes are loosened and phone calls to families allowed on special occasions. “We try to arrange family meetings after the treatment” adds Kelly. 

Restoring Community Bonds

Instead of isolating and later discharging untreated people back into their communities, the court decides to remain in their lives and environment. “People are not left alone,” explains Lucille Jackson. “There are programs to help them graduate and find jobs.” In her view this seems to be a more responsible approach.

The basic challenge however is to overcome the community’s fear of offenders. “Stigma is huge,” notes Jackson, “we need to educate a public that is terrified of people with mental illnesses.” The community needs to be made aware that this is the most efficient way of dealing with the mental health problems and ensuring public safety.

In this way not only the individual accused but also the community, appear to be clients of lawyers; as Ronald Earle, the indefatigable D.A. in Travis County, Texas puts it – “community is what both the prosecutor and the defense lawyer have in common.”  That is why, as Dave Kelly admits, “in many cases everyone ends up happy in the courtroom.” The traditional adversarial process reigns only until the defendant pleads guilty, “then the pressure is off.” All sides of the courtroom want to achieve the best outcome for the client; “as a D.A. I want to keep the person out of prison, and the defense attorney wants, for instance, probation or something else, so in fact we agree,” adds Kelly.

This contributes to a peculiar communal spirit within the court. “The judge remembers family events, birth dates; he shows he cares about the defendant in order to gain his trust,” – says Joyce Kendrick, who describes her own experience in the following terms: “It is almost like becoming a mother, sometimes you need to encourage people, sometimes just scold them.”

Prospects and Limitations

The alternative court model of which the BMHC is a glittering example has been successfully implemented in other places across the country; from Washington to Ohio to Alaska.  According to Judge D’Emic, the Brooklyn court’s success rate in fighting recidivism is 82 percent, and among the 118 defendants accepted to the program in the past four and a half years, 17 have already graduated. 

The real measure of success for Joyce Kendrick is, however, “when I see people coming back after a year, looking better, working again, and I compare it to our first meeting.”

There are, however, some scratches on this shiny image. None of people randomly asked on sunny afternoon in the courtyard opposite the BMHC recognized its name or purpose. The majority of them, however – excluding a belligerent middle-aged man and an officer in security uniform – did seem to share its principles of putting treatment before punishment for criminals with mental illness. “Sometimes such problems can just happen,” remarked a casually-dressed woman, trailing shopping bags. Uncertain of proper security measures, respondents would be still mostly suspicious about having such people in their neighborhoods.

The basic problem, however – in the opinions of both Judge D’Emic and A.D.A. Dave Kelly – is the lack of resources for sufficient community programs within the mental health care system to deal with even the general populace, let alone BMHC clients. “You cannot reach everybody,” laments Lucille Jackson. These financial shortages can also additionally discourage potential health care providers, who are often already suspicious about working with criminals and would rather see them locked up, Jackson adds.

Between a Bureaucratic Rock and a Hard Cultural Place

The sources of social change are to be found not only in the attitudes of people within the system itself, however, but also – according to Ricken Patel, Co-Director of Res Publica– in the laws that shape the judicial system and the values and worldviews of the general public. Or as Judge D’Emic sums up, “the court is a reflection of society; if society reacts, the court system reacts too.” 

Do the cultural patterns of a particular society, then, place insurmountable limitations on the flexibility of its judicial system? Ricken Patel identifies two different levels of court reform: the change of focus from punishment to rehabilitation and the change from a modern bureaucratic, typically Western justice style to a more traditional, community-based approach. The mental health court model certainly seems to reflect the first change in the shape of its ethical principles, yet the second level of reform in some sense remains an incomplete attempt.

Movements towards a community-based system prove to be efficient in post-war societies like Afghanistan or Sierra Leone, but are also – according to Patel – highly dependent on the cultural context of the country. Some movement in this direction can also be found in American problem-solving courts, which “grow the effort to create common understanding” between the participants of the trial as well as the options of alternative dispute resolutions through professional mediators.

The principles of Western parliamentary democracy, however, seem to be based on an adversarial, “combative” approach whose value, as Patel indicates, lies in a “moral pressure put on it as it is exposed to public scrutiny.” And public scrutiny in America doesn’t seem to be willing to allow for full forgiveness, even of criminals whose criminal intent lies cloaked in the mist of mental illness, a fault that becomes evident in a certain professional distance all court officials we questioned characterize as a necessity. 

Despite the categorical emphasis on community-building at the BMHC, a certain perfunctory “hi-how-are-you” attitude, of which Americans are commonly accused, pervades in the courtroom, in which some clients wait as long as three hours for a grand total of thirty seconds’ attention from the judge. Mustafa Garment, forensic coordinator (often called a case manager) for the BMHC and former client of a problem-solving court, maintains that “sometimes the people who surround you make you come out,” yet stipulates that “the relationship here is that there’s a boundary that I don’t cross, because as a professional, I have to keep it.” The true friendships he’s developed within the system are with those who were ‘clients’ when he was; with the clients he now serves, he maintains a friendly distance. Officer Feinberg agrees in characterizing his relationship with clients: “I wouldn’t say friends, but friendlier.” 

Yet Garment’s inhibition is far from indifference. He admits that, having been through a similar program himself, he sympathizes deeply with clients and sometimes sees the Court’s tendency to stick to one blanket policy for all as too intrusive, but further remarks, “we don’t try to tell the Court how to run their programs; it’s their policy.” Surprising words from a case manager who should find himself fully incorporated in the “they” of “their policy.” Could this personal paradox be interpreted to mirror a restitution of public trust as yet not fully formed? As Judge D’Emic says of the BMHC program, “it’s an intrusion, there’s no question about it, but my assumption is that they’ve committed a crime, so they need that control.”

These structural issues are perhaps minor in light of the resounding improvements the mental health court model has made upon the treatment of the mentally ill within the traditional court system. Their origins – cultural constraint? or merely symptom of the bureaucracy of limited resources? – are also blurred. Yet the residue of stigma, whatever its origin, always coats thickly.

The Research Must Go On 

If the stain of crime will never fully come out in the wash of an American justice system, then the obvious solution is to avoid spills in the first place. Though much of the symptoms of bureaucracy still present in the BMHC could likely be eliminated through better funding, more courts to reduce jurisdiction size, and increased public awareness and support, the root of the problem lies in the extreme role play the court has been forced to undertake. Mental health courts should not have to be “the hospital of last resort,” when a happy medium could instead be wrought between deinstitutionalization and the current system of loose regulation.

Yet there is an even deeper dilemma that rests just beneath the surface at every corner of a mentally ill defendant’s experience within the American justice system. It is a dilemma of minority protection in general, in whose defense the efforts of traditional group-based civil rights and its legislation have proved inadequate. Any society must demand a certain degree of assimilation from its constituents in order to function; in less polemical terms, it must create a common ground. Yet as Yale law professor Kenji Yoshino concludes in his recent book Covering, “what will constitute a good-enough reason to justify assimilation will obviously be controversial. We have come to some consensus that certain reasons are illegitimate – like racism, sexism or religious intolerance. Beyond that, we should expect conversations rather than foreordained results – what reasons count, and for what purposes, will be for us all to decide by facing one another as citizens.”  Conversation and facing one another as citizens is precisely the intended methodology of the mental health court model. Yet as our research has shown, such methods are not always so easy to put into practice. Perhaps the judicial solution alone, then, is not the best way to deal with minority protection.

We do not claim to know the solution to the dilemma of minority protection (yet). All we can do at this point is to express the quest for such answer and let it hover in the madly hot and dense summer air of New York.

 

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United-states United States 2006

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