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There is a well-documented “shuttle process” by which individuals committed to psychiatric institutions (having been charged with minor “nuisance”-type criminal offenses) are often stabilized, returned to jail to await trial, and then returned to the hospital following relapse. This shuttling or cycling is bad for many reasons, not least of which is the way that it deprives the cohort of individuals at risk from any meaningful continuity of care. Continuity of care is crucial in order to reduce the rate of incarceration and institutionalization for persons with mental illness. Without this continuity, it is far less likely that any therapeutic intervention will have any long-lasting ameliorative effect. In this paper, we will argue that the current system – in addition to being utterly counter-productive (and in many ways, destructive) – also violates the constitutional right to treatment, and the statutory right to non-discrimination as provided in domestic (the Americans with Disabilities Act) and international (the Convention on the Rights of Persons with Disabilities) human rights law. This also violates every precept of therapeutic jurisprudence; in this context, we argue that it is necessary for lawyers to integrate these teachings – focusing on the prerequisites of “voice, validation and voluntariness” – in their representation of this population in the hopes that the current system can be ameliorated. In conclusion, we will offer some solutions as to how continuity of care can be improved through mental health courts, programs that support diversion away from incarceration at an early process in a criminal proceeding, proper mental health screening, expanded access health treatment and better re-entry services, and training for all persons interacting with someone with mental illness.


Wake Forest Journal of Law & Policy, Vol. 8, Issue 2 (May 2018), pp. 455-502