Guest blogger Michelle Edgely considers how mental health courts can inform improvements in mainstream courts for people with mental illnesses….
Mental health courts have been subjected now to decades of research. Collectively, this body of research demonstrates that properly designed and implemented mental health courts can cost-effectively and safely reduce recidivism while improving the health and psychosocial functioning of mentally impaired offenders.
Many judicial officers are pressing for therapeutic jurisprudence approaches to be applied in mainstream court settings as well as problem solving courts. In that context it would be useful to know which problem-solving elements are efficacious for this cohort.
This blog draws on two of my recent papers (links below). A theme running through both papers is that courts should adhere to evidence-based practice because scarce resources should be directed where they will be most effective and best rehabilitative practice is sometimes counter-intuitive.
Treatment or multidisciplinary supports?
Experts agree that the correlation between mental impairment and offending is substantial, but the causal nexus is not well understood. That begs the question of whether programs should focus on delivery of treatment or criminogenic interventions or both.
Studies comparing the results of mental health treatment programs with multi-disciplinary programs (which feature treatment and psychosocial interventions) have found that the multi-disciplinary programs were correlated with better recidivism outcomes. One study also found that multi-disciplinary programs were correlated with improved clinical outcomes.
An evidence-based approach to developing an appropriate program starts with the eligibility criteria. The program will also feature individualised assessment and a customised program of interventions based on the defendant’s risk of reoffending, his or her criminogenic needs and various personal characteristics which can effect motivation and learning.
The provision of high quality services is integral to the effectiveness of multidisciplinary programs. The range of treatments and interventions should include counselling, cognitive behavioural therapy, integrated substance abuse treatment, housing support, liaison with welfare agencies and referrals for specialist vocational training.
To facilitate access and coordinated delivery of services, courts will need to establish formal relationships with service providers. This will help ensure that service-providers understand the unique therapeutic and justice context and can appropriately support justice needs, for example, by being able to produce relevant participation reports.
Voluntary participation and sentence discounts
A key norm of therapeutic jurisprudence is respect for offenders, which requires that they be given a choice about participating in problem-solving programs. It is believed that choice has therapeutic consequences. Achieving behavioural change is unlikely without a strong personal commitment backed by choice.
Participants who satisfactorily fulfil program requirements usually receive a sentencing discount, which incentivises behavioural change, and recognises participatory efforts as reducing the need for punitive sentencing. It has been argued that sentence discounts undermine the voluntariness of participation because they leverage choice with the coercive threat of sentencing.
Are sentence discounts appropriate then in this context? Research shows, counter-intuitively perhaps, that the recidivism-reduction outcomes of entirely voluntary programs (those with no sentencing consequences) and entirely involuntary programs were both correlated with poorer recidivism outcomes than programs which leveraged participation with sentencing incentives. One explanation suggested by qualitative research is that sentencing discounts combined with the stress of facing court help to mobilise a defendant’s latent desire to reform.
Role of the judicial officer
The involvement of a judicial officer makes courts unique as facilitators of rehabilitation. The scheduling of review hearings allows the judge or magistrate to review a defendant’s progress and, if necessary, to adjust the intervention plan. More fundamentally, from a therapeutic jurisprudential perspective, the judge’s role is to establish a rapport with the defendant for the purpose of forging a therapeutic alliance. To build that relationship, the judge engages in direct two-way dialogue with the defendant, regardless of the presence of a defence lawyer.
Research suggests that the interaction between judge and defendant is critical. One dimension is of that interaction is procedural justice. Empirical studies have shown, perhaps surprisingly, that the psychological impact on litigants of procedural factors have been greater than that of substantive outcomes – including the duration of prison sentences. Procedural fairness is constituted by dignity – respectful treatment; neutrality – freedom from preconceptions; participation – the subject’s voice is taken into account; and trustworthiness – conveying sincere concern about the subject’s welfare.
The importance of procedural fairness is understood to lie in the prestige, authority and status of judicial officers. Being treated with procedural fairness by a judicial officer enhances a subject’s self-worth. The judge or magistrate is a societally respected authority figure – many offenders in this cohort have never experienced the positive attention of any authority figure. Once a relationship is established, the desire to please the judge can be a powerful motivating force.
To effectively problem-solve for this cohort, judicial officers need advanced interpersonal skills and a solid understanding of the psychology of behavioural change. These skills will enable them to read the defendant and respond using evidence-based techniques to build confidence and motivate. Rewards and sanctions are also part of the judicial toolbox. Tangible rewards can supplement sincere praise as recognition for milestone achievements. Sanctions, however, should be used cautiously with mentally impaired offenders, and preferably following clinical advice to counter the risk of back-sliding.
The judge is also responsible for transforming the courtroom into a pro-therapeutic environment. In problem-solving courts this is achieved through the inculcation of a collaborative, non-adversarial culture. A team-based approach increases the sum of expertise available and communicates solidarity of belief in the defendant’s capacity to succeed.
The importance of applying evidence-based approaches cannot be overstated. Legal instincts are not reliable guides, especially when traditional legal methods have been shown to be anti-therapeutic. Mentally impaired offenders are a particularly challenging cohort. Nonetheless, research demonstrates that defendants can achieve behavioural change with the right combination of health and psychosocial supports. Research can and should guide the implementation of problem-solving programs, even in the mainstream context.
The scientific evidence-base supports programs which feature:
- mental health treatment and psychosocial supports;
- treatment and supports delivered through the auspices of formal agreements between the court and service-providers
- the use of individualised assessment and customised programs of interventions;
- the use of sentencing discounts to leverage voluntary participation;
- maximisation of the role of the judicial officer. The judge’s advanced interpersonal skills and use of behavioural psychology are deployed therapeutically to motivate the defendant and promote compliance.
- a therapeutic environment that is fostered with a collaborative non-adversarial culture.
If courts can successfully implement evidence-based problem-solving in mainstream settings, the promise is that the benefits of boutique problem-solving courts would flow through more defendants and beyond, into the wider community. This is an experiment worth pursuing.
Read about this topic in more detail (click to link to full articles):