Courts of Dignity


Courts of Dignity

Replacing Punishment with Compassion

By Meaghan Winter

May/June 2021


Ginger Lerner-Wren, before she became a judge, worked at the Broward County Office of the Public Guardian, where she learned repeatedly just how little access to psychiatric support was available in South Florida. “Families came in begging me to take over the care of their loved ones with mental illness because they couldn’t find the help they needed in the community,” she remembers. In her work there—including being a legal advocate for people with disabilities—she was constantly confronted with people who couldn’t get treatment for themselves or their family members. “I was feeling helpless,” she recalls.

A few years earlier, in the late ’80s, also in Broward County, Jane and Alexander Wynn were desperately seeking help for their son Aaron. When he was 18, Aaron had been hit by a car and suffered severe head trauma. The vibrant young man who’d loved swimming in the ocean, playing chess, and riding his motorcycle was transformed into a person they barely recognized—alternately withdrawn and consumed with rage.

At that point, the Wynns, too, received a terrible lesson in how difficult it was to find psychiatric care. When, for example, they tried to admit Aaron to a state psychiatric hospital because he was unable to function in daily life, they were told it had a two-year waitlist. They couldn’t afford the exorbitant cost of a private care facility. In 1988, three years after his accident, Aaron was arrested for allegedly assaulting a police officer, found mentally incompetent to stand trial, and sent by the Florida Department of Corrections to two different state psychiatric facilities. One of those hospitals kept him in solitary confinement for two-and-a-half years. During much of that time, he was strapped to a bed in a darkened room.

After Aaron was discharged, he was diagnosed with schizophrenia and post-traumatic stress disorder (PTSD). A couple of years later, while buying groceries at a local supermarket, he suffered a psychotic episode, ran out of the store, and collided with an 85-year-old woman, who died from her injuries. Aaron was charged with murder. When Howard Finkelstein, the assistant district attorney and public defender assigned to his case, dug into his history, he demanded a grand jury investigation into Broward County’s mental health system. The grand jury issued a scathing report, as a result of which Aaron Wynn later received $18 million to compensate for his suffering and to cover his care in a private residential psychiatric hospital.

The grand jury’s report became a call to action for Finkelstein and his colleagues. It revealed the extent to which local mental health care services were chronically underfunded and people with mental illness were overrepresented in the criminal justice system, routinely shuffled between jails, emergency rooms, and shelters, without receiving adequate care. The report made clear the pressing need for criminal justice professionals to work with more accountability and collaboration to provide continuous care for people with mental illness.

In its failure to provide adequate treatment, Broward County was not an outlier.

Across the United States, our national failure to provide mental health care is a root cause of mass incarceration, which, in turn, is accelerating our nationwide mental health crisis. In the ’90s, justice officials and advocates became increasingly frustrated by how many people with substance abuse issues and mental illness were cycling in and out of jails. They saw that punishment wasn’t an effective strategy for rehabilitating people or decreasing crime. From that shared frustration came the movement to create what are often called problem-solving courts, designed to divert people from specific vulnerable populations—like veterans with trauma and people with a history of substance abuse—from incarceration to effective treatment.

Among these problem-solving courts are what are called mental health courts, and there are now at least 550 of them in the United States. But compared to the commonest kind of problem-solving court—drug courts, which number in the thousands, are relatively well-funded and increasingly folded into the mainstream judicial system—mental health courts still mostly operate on the margins, run by visionary judges and clinicians committed to keeping people with mental illness out of prison.

Breaking the Cycle of Retraumatization

Thirty years after Aaron Wynn was incarcerated, people with mental illness are still, and increasingly, overrepresented in US jails and prisons. An estimated 50 percent of people with serious mental illness will be arrested at some point in their lives. As Alisa Roth writes in her 2018 book, Insane: America’s Criminal Treatment of Mental Illness, “Although the overall number of people behind bars in the United States has decreased in recent years, the proportion of prisoners with mental illness has continued to go up.” In 2017, a staggering 43 percent of the people held at New York’s Rikers Island had a diagnosable mental illness.

“If you’re coming from a human rights framework, it’s like punishing somebody because they had a diabetic episode,” says Judge Ginger Lerner-Wren, who now presides over the Broward County Mental Health Court, the nation’s longest-running court specifically tailored to address the needs of people with mental illness.

The numerous things that went wrong for Wynn weren’t simply bad luck. His experience illustrates how abysmally the criminal justice system often treats people with mental illness, exacerbating their symptoms and pushing them further down a painful and dangerous trajectory. As Roth describes, corrections facilities in the United States smell like “dirty laundry, unwashed people, and excrement.” Violence is commonplace. Suicide is the leading cause of death. And as difficult as conditions are for everyone, people with mental illness tend to fare worst of all.

"Whether therapeutic or antitherapeutic, the court process has a psychological impact. That process can tip the scales toward dignity and respect."

A 2011 study found that people with mental illness were more than eight times as likely as other people to experience sexual violence while incarcerated, and they’re less likely to make bail or parole, so they’re stuck in stressful, often traumatic conditions for a longer time. And they’re likelier to be punished with solitary confinement—which typically means living in a closet-sized cell with a toilet, a metal or concrete bed, and a slot through which corrections officers periodically slide a “loaf,” a mix of ground food pressed together. In several states, people who attempt suicide in prison—people already in extraordinary pain, often struggling with severe trauma—are punished with solitary confinement.

Many advocates for criminal-justice reform argue that incarceration itself is traumatic. Compounding the problem, data show how many people entering the system already have a history of untreated trauma: the incidence of PTSD is seven to 10 times as high among people who are incarcerated than the general population. In addition, women who were abused as children are twice as likely to have been arrested than those who weren’t, and as many as 90 percent of women who’ve been incarcerated have suffered sexual assault or other forms of physical violence. For incarcerated men, a clear majority—estimates run from 62 to 87 percent—have experienced trauma at some point.

At the same time, it’s difficult for criminal-justice experts to draw straight lines between trauma and illegal behavior. Plenty of people who survive traumatizing events never commit crimes, and people who end up in a research study about PTSD may already have been traumatized—before, during, and after their time in jails and prisons. In other words, while correlations among trauma, mental illness, and incarceration occur, we can’t make sweeping statements about which comes first.

But it’s well documented that people with serious mental illness and those with co-occurring disorders are at the highest risk of being rearrested and winding up back in prison. Advocates say that’s because they don’t receive adequate treatment that could help stabilize them over the long-term. Many are denied access to treatment after they’re arrested. Medicaid is the largest provider of mental health services in the country, but many states suspend or cancel Medicaid during incarceration.

Finkelstein and the Broward County task force investigating the local public health system came to a similar conclusion. They pushed to establish a court that would treat people with mental illness more humanely and aim to break the cycle of retraumatization and rearrest. A few years earlier, Broward County had founded the nation’s third drug court—which diverted some people arrested on substance abuse charges to rehabilitation programs and dropped their charges if they complied with their treatment plans. The drug court was so effective at preventing rearrest that Broward officials decided to base the mental health court on a similar model. “Their passion was so intense,” Lerner-Wren recalls. “At the time, it was quite an aspirational vision, and it remains so today.”

Therapeutic Justice

In 1997, Lerner-Wren, shortly after having been elected to the local circuit court, was tasked with founding what would come to be the first mental health court of its kind in the country. Back then, the concept of a trauma-informed legal community was gaining traction, and its reform-minded members were starting to get excited about a new idea—therapeutic justice.

“Courts are therapeutic agents,” Lerner-Wren says. Whether therapeutic or antitherapeutic, “the court process has a psychological impact. That process can tip the scales toward dignity and respect.”

Therapeutic justice relies on treating someone’s underlying mental health conditions, rather than simply doling out punishment. That notion may seem intuitive, especially to mental health providers, but operationalizing that ideal by coordinating criminal justice and public health agencies can be a daunting challenge. “We really wanted to turn the courtroom inside out,” Lerner-Wren explains. “How do we elevate the person over the court?”

Before Lerner-Wren could achieve her goal of “harnessing the court for a therapeutic outcome,” she had to figure out how it’d provide wraparound support to people with myriad acute needs. Today, across the country, many mental health court participants have a history of psychosis, and they’re often disenfranchised in other ways—living without permanent housing, support from family, or steady work—says Lisa Callahan, senior researcher at Policy Research Associates and a national expert on treatment courts. When designing the court, Lerner-Wren kept those overlapping vulnerabilities in mind. What if someone was homeless, for example? If a court team was going to attempt to stabilize people long-term, it couldn’t just release them to the street.

It became clear that building true wraparound support would require orchestrating numerous people and agencies working across the county—and Lerner-Wren was going to need community buy-in. Since many local mental health providers didn’t work with people in jail, she drove around Broward County asking nonprofits and government agencies to change their models, with no extra funding, so they could work with the court and pull off the program. This was particularly challenging because state funding for mental health services was all but nonexistent.

“Sometimes we had to shame people, and sometimes agencies just stepped up,” she remembers, with both exasperation and pride in her voice. “It was heroic of the agencies that agreed; it was a community effort.” But even once the court was up and running, there was no playbook for Lerner-Wren.

The first person to stand before her was Roger, a man in his 20s, who’d been arrested for causing a disturbance outside a convenience store. He was homeless, disheveled, and screaming incoherently. Lerner-Wren signed an order diverting him from jail to a psychiatric hospital. That day, she and the team worried that they weren’t doing any more for Roger than had been done for Aaron Wynn. But the difference was that the court team—clinicians, administrators, and judge—would keep track of Roger. They were working for him.

They found his parents, who’d been anxiously looking for him. And after he was treated at the hospital, he was brought back to courtroom, where the clinician who’d recently evaluated him explained that he was ready to move to a residential supportive housing program close to his parents’ home. The team would make sure that he, and others in his position, wouldn’t languish in a prison or a negligent hospital. Instead, Janis Blenden, the court’s clinical social worker, would evaluate each person with mental illness and find them appropriate care.

The Broward County Mental Health Court became a national model for other pioneers of therapeutic justice. The court team routinely faced—and continues to face—thorny questions about how best to handle difficult cases, but their commitment to provide access to treatment despite challenges has been a beacon for the country. Each of the mental health courts working to break cycles of trauma and rearrest exist only because local judges and advocates willed them into existence, just as Lerner-Wren did in Florida.

It’s Not Too Late

Judge Lerner-Wren’s personal approach to therapeutic justice—which has been studied and reported on by UN delegates, national media outlets, academics, trauma experts, and judges around the world—is, at its core, incredibly simple.

She improvised her approach, but when she became a judge, Lerner-Wren already had a foundational understanding of the effects of trauma on people’s mind, body, brain, and behavior. She’d witnessed firsthand the cascading problems the confluence of trauma and mental illness caused for individuals, families, and communities. She’d read the research, and she wanted two things: for her courtroom to take trauma into account and to promote human dignity. “So how do you express that?” she asked herself. “How do you convey that as a judge?”

She knew that language would be important. Instead of the typical, solemn “All rise,” Judge Lerner-Wren greeted the courtroom with “Welcome to mental health court.” When she spoke, she tried to create a “bonding experience,” as she calls it, rather than an aura of authority. “I really tried to level the playing field,” she says. She scanned the room to read people’s expressions, and then came down off the dais. When she sat next to family members, she described how the process would work. She drew pie charts to explain that medications, talk therapy, case management, and family support were all important. And she took her time.

"They pushed to establish a court that would treat people with mental illness more humanely and aim to break the cycle of retraumatization and rearrest."

In her book, A Court of Refuge: Stories from the Bench of America’s First Mental Health Court, she describes a conversation with a woman whose 25-year-old son had been diagnosed with schizophrenia and arrested for allegedly stealing batteries from a pharmacy. The woman was distraught.

“Hayden is a good boy,” she told the judge.

“I know this is difficult,” Judge Lerner-Wren replied, “but we’re going to help you.”

She offered the mother a tissue and explained the different kinds of support Hayden would need. After drawing her usual pie chart, she ended with a note of hope for the woman, who said she couldn’t bear to see her son in shackles. “You need to know,” Lerner-Wren told her, “that people can and do recover from serious mental illness, just as they recover from physical illnesses. Hayden has great strengths and gifts. With patience, and an abiding belief in recovery, these strengths will guide his recovery.”

When Lerner-Wren offers such assurances, it’s apparent that her courtroom isn’t the office of a mental health professional. Not many clinicians would talk about recovery from a serious mental illness like schizophrenia in that way. When pressed about her promises of recovery, she clarified: while not everyone with a serious mental illness may be able to go to school or hold down a job, they can improve enough to develop meaningful relationships and participate in a community. She was adamant that not affirming the possibility of recovery in this sense perpetuates dangerous stigma. Her intention, she says, is to “communicate caring and inspire hope.”

The longtime court clinician, Janis Blenden, a licensed clinical social worker, is the one who does the mental health evaluations and recommends placement for treatment. “In the courtroom, I take over,” she says. She arrives before the judge, looks at the docket, and talks with each person on it. She sends anyone experiencing psychosis to a hospital immediately. But most people, there because they’ve been charged with crimes like shoplifting or trespassing, are relatively high functioning and can live with family. After 23 years at the court, Blenden can readily determine whether someone’s going to be able to participate. “If they’re not admitting to having a mental illness and they have one, they don’t belong in the court,” she says. “Motivation to get help and move forward is what we’re all about.”

After Judge Lerner-Wren arrives, Blenden presents her evaluations in open court. Later, she contacts treatment providers to look for an open bed or counseling slot for each person accepted into the court. In Broward County, third-party clinicians or facilities provide treatment; in some other mental health courts around the country, staff provide counseling and case management themselves.

Lerner-Wren considers it her job to expand a sense of what’s possible in the lives of those who end up in her court. She asks them questions like “What did you want to be when you were young?” And then she says, “It’s not too late.” Within a few years of founding the mental health court, she began offering a bit of psychoeducation, explaining the effects of trauma to the people standing before her. She usually refers to the Adverse Childhood Experiences (ACEs) study and describes to defendants and their families in plain language how unresolved trauma and victimization shapes people’s behaviors and lives. As she writes in A Court of Refuge, sharing information about the science behind trauma and treatment “aids people’s ability to connect the dots, to be advocates for themselves, and to appreciate the root cause of human behavior, including their own.”

Holding Clinicians Accountable

In addition to paying close attention to her interactions in the courtroom, Lerner-Wren tried to interrupt the cycle of retraumatization by focusing on the system itself, and mental health care providers in particular. This stands in contrast to the Broward mental health system that 21-year-old Aaron Wynn had been caught up in, where “no one was accountable to anyone for anything,” Lerner-Wren says.

Problem-solving courts are sometimes called accountability courts. In drug courts, accountability is often understood to mean that the court is holding someone accountable for their sobriety. For Lerner-Wren’s team, the notion of accountability is flipped. Their court aims to hold mental health care providers accountable to patients. Her team wants to make sure that local hospitals aren’t discharging dysregulated people back into jails or the community, as the scathing grand jury report had found they’d been doing for years. Lerner-Wren implemented the protocol that when a hospital or other treatment facility intends to discharge someone involved in the treatment court, that person has to appear before the court so the clinician can confirm that they’re in fact ready to be discharged. The judge and other team members scrutinize the discharge plan to make sure the person would receive appropriate ongoing care, such as regular appointments with a caseworker and a psychiatrist.

Often, Lerner-Wren and the clinician don’t think the provider has done enough, and she’ll issue an order to send someone back to a treatment facility. “If we’re really serious about changing the culture and moving away from criminalization, then we’ve got to be serious about the quality of care and discharge planning,” Lerner-Wren says. “It doesn’t mean people liked it,” she says of the psychiatric care providers, but, ultimately, most accepted and treated the patients—which was possible only with “the will of the community” and “the court as the lever.”

Launching Trauma-Informed Courts

The need to address underlying trauma and mitigate further traumatization is now more accepted within the legal community. “But how we apply the principles of trauma-informed care in the criminal-justice system is a whole other story,”says Alyssa Benedict, who trains law enforcement on trauma as a cofounder of Women’s Justice Institute and CORE Associates, both organizations that advocate for criminal justice reform.

Mental health court judges live in a tension: “Some of the criminal justice system’s emphasis on punishment, accountability, and policies is incompatible with the principles of trauma-informed care,” says Benedict. As treatment courts have proliferated, judges have constantly had to negotiate how to balance accountability and support. Unlike drug courts, mental health courts have no national standards to rely on, and so numerous questions like whether a court pays attention to trauma and how it issues sanctions depend largely on the presiding judge and the clinician.

“Our team firmly believes that addressing trauma is the missing piece in treatment and in reducing recidivism,” says Judge Marcia Hirsch, who in 2005 founded a mental health court in Queens, New York, and has since established four other problem-solving courts, including those focused on veterans, people with co-occurring substance abuse and mental health issues, and people who’ve been arrested for driving while intoxicated.

Hirsch says her team “stumbled upon” the pivotal role trauma plays in the lives of people who’ve been arrested. Her second year on the bench, a spate of young people with loving families ended up on the docket. All had serious heroin addictions. Something didn’t add up. Hirsch and her team looked further into their histories and discovered that they’d all been adopted. They brought in psychologists who specialized in adoption and learned that some people who are adopted carry deep emotional traumas.

That discovery changed their practices. Hirsch was already steeped in the ethos of therapeutic justice, but her team applied for a federal grant that funded training on trauma-informed principles and began to screen everyone coming through the accountability courts for trauma. Their core finding: trauma is nearly universal among people in all five of their accountability courts. “Every single one of the veterans tests high on the trauma scale,” she says, by way of example. “All my women vets have military sexual trauma. Some of my men also have military sexual trauma. They have high ACE scores. They have all kinds of trauma.”

The team can see a marked difference in people who complete their trauma workbooks and counseling. “They become a lot more open,” Hirsch says. “One of the first things we notice is that people who normally wouldn’t make eye contact in court start doing it. They’re more willing to talk. You really see the difference.” One of the court-organized women’s trauma groups decided to keep meeting for coffee once a week after their mandated meetings were over. “Those little anecdotal things are how we see that it works,” says Hirsch. “People can put past trauma into context and realize it doesn’t have to define them: they can still find happiness and fulfillment.”

Across the country, courts like these are cropping up, but in an uneven patchwork. The federal government doesn’t fund them as it does the drug courts, except for limited grants, and most states don’t fund them either. As a result, the nation’s 550 mental health courts operate in some counties and not others, and they tend to be concentrated in urban areas.

That they’re scattered means that someone who’s been arrested for disorderly conduct after panhandling in a Burger King, for example, might receive some psychoeducation on trauma and a referral for a drug treatment program or therapeutic care—or five years in a corrections facility, where they’re denied not only treatment, but basic hygiene products. It all depends on the county in which they’re arrested—and, in some cases, on whether the local mental health court docket is already full.

"If mental health courts make such a difference in rates of recidivism and the well-being of the people who enter them, why aren't there more in our country?"

On a Wing and a Prayer

If mental health courts make such a difference in rates of recidivism and the well-being of the people who enter them, why aren’t there more in our country? Well, getting a mental health court up and running is a herculean task, one whose success depends on the tenacity of many people. First, someone local, usually an enterprising judge, must be knowledgeable and passionate enough about mental health to go out of the way to do the legwork to advocate for the court. Then, district attorneys and sheriffs must get on board and, in some places, be willing to take the political risk of being called soft on crime.

Significantly, these courts also need mental health providers to support them. Psychiatrists, psychologists, and social workers must be available to work at least part-time as court clinicians, and treatment providers must be ready to accept an ongoing stream of referrals.

Treatment courts often work with people for a year or longer—a serious undertaking. In many places, a paucity of mental healthcare providers—both individually licensed clinicians and institutional providers—means that operating a mental health court is a logistical impossibility.

Despite these barriers, across the country, from Dougherty County, Georgia, to Brooklyn, New York, clinicians and judges are seeing treatment court clients while also working their day jobs. Some judges and clinicians pull off scrappy side programs where they hear mental health court cases essentially as volunteers, in between their other responsibilities, in an act of dedication that Lisa Callahan, a national expert on treatment courts, likens to teachers tutoring struggling students during their free periods. “What’s always remarkable to me,” she says, “is when I find out that there’s a judge who’s doing a mental health court completely on a wing and a prayer.”

Advocates for treatment courts hope that the wide acceptance of teletherapy means that more psychiatrists and psychologists will offer to work part-time for far-flung treatment courts in regions that are short on clinicians—which would allow the courts to expand and more people with mental illness to be diverted to treatment, rather than prison. Alyssa Benedict, who trains criminal justice officials on trauma-informed practices, points out that clinicians can help build community mental health supports that prevent people from getting arrested in the first place—the same kind of help that Aaron Wynn’s parents weren’t able to find for him in time. “It’s about lack of access to care. That’s the real story,” Lerner-Wren says, although ultimately, at least in the case of Broward County, “The community really stepped up.”

***

Meaghan Winter is the content editor at Psychotherapy Networker.

ILLUSTRATION © ILLUSTRATION SOURCE / ROY SCOTT




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Friday, May 7, 2021 1:40:47 PM | posted by David Yamada
I am so glad to see mental health courts getting exposure in Ms. Winters's fine article and in this publication! Judge Lerner-Wren also happens to be on the board of trustees of the International Society for Therapeutic Jurisprudence, a non-profit organization dedicated to advancing psychological health and well-being in legal events and transactions: https://intltj.com. We welcome involvement by mental health professionals! David Yamada Professor of Law Suffolk University Law School, Boston, MA