Document Type

Article

Publication Date

2013

Abstract

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is certainly not without controversy.

These courts offer a new approach – perhaps a radically new approach – to the problems at hand. They become even more significant because of their articulated focus on dignity, as well as their embrace of therapeutic jurisprudence, their focus on procedural justice, and their use of the principles of restorative justice. It is time to restructure the dialogue about mental health courts and to begin to take seriously the potential ameliorative impact of such courts on the ultimate disposition of all cases involving criminal defendants with mental disabilities.

There has been much written about these courts, but little attention has been paid to two issues that must be considered seriously: the quality of counsel available to persons in mental health courts, and the question of whether the individual is competent to engage in mental health court proceedings. These are both discussed extensively in this paper.

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. This entire discussion, while important and helpful, bypasses the critical issue that is at of this paper: do such courts provide additional dignity to the criminal justice process or do they detract from that? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.

In Part I of this paper, I first discuss the underpinnings of therapeutic jurisprudence. Next, in Part II, I look at the structure of mental health courts, and then raise the two concerns about such courts that are, I believe, of particular relevance to which I just alluded: questions of adequacy of counsel and the competency of defendants to voluntarily participate in such court proceedings. In Part III, I then consider the role of dignity in this process, and look to ways that therapeutic jurisprudence can promote dignity in this context.

Comments

Mental Health Law and Policy Journal, Vol. 3, Issue 1 (Fall 2013), pp. 1-28

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