Theorizing Mental Health Courts

Washington University Law Review, Jun 2012

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention.

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Theorizing Mental Health Courts

Theor izing Mental Health Courts E. Lea Johnston 0 0 Thi s Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information , please contact , USA Part of theCourts Commons; Health Law and Policy Commons; Jurisprudence Commons; and To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of an assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research and an independent analysis of mental health courts’ eligibility criteria, this Article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The Article concludes by identifying alternative theories that may justify this novel diversion intervention.  Assistant Professor of Law, University of Florida, Levin College of Law. I wish to thank Christopher Slobogin, Dan Markel, Nancy Wolff, Mae Quinn, Michael Seigel, Michelle Jacobs, Emily Hughes, Robert Bernstein, Jennifer Eno Louden, Susan Bandes, John Stinneford, Wayne Logan, Michael Wolf, Jake Linford, Elta Johnston, and Reid Fontaine for their valuable suggestions. The Article also benefited from feedback from participants of the 2011 American Psychology-Law Society Congress and Fourth International Congress of Psychology and Law, the faculty workshop at Florida State University College of Law, the 2010 Southeastern Association of Law Schools Annual Conference, and the University of Florida Levin College of Law scholarship development workshop. I am grateful for the summer grant provided by the Levin College of Law. Finally, I thank Joe Eagleton, Jon Bense, Amber Curtis, Jacy Owens, Courtney Gaughan, and Andres Healy for their outstanding research and editorial assistance. TABLE OF CONTENTS INTRODUCTION Fueled by federal funding,1 approximately 250 mental health courts now exist in forty-three states.2 While no single definition of “mental 1. See Mentally Ill Offender Treatment and Crime Reduction Act of 2004, Pub. L. No. 108-414, 118 Stat. 2327 (2004) (codified as 42 U.S.C. § 3797aa) (authorizing funding, training, and technical assistance for collaborative efforts between criminal justice and mental health agencies, including mental health courts); America’s Law Enforcement and Mental Health Project Act of 2000, Pub. L. No. 106-515, 114 Stat. 2399 (2000) (codified as amended in scattered sections of 42 U.S.C.) (granting funding for the development or expansion of mental health courts). 2. Henry J. Steadman et al., Effect of Mental Health Courts on Arrests and Jail Days, 68 ARCHIVES GEN. PSYCHIATRY 167 (2011), available at http://archpsyc.ama-assn.org/cgi/content/ abstract/archgenpsychiatry.2010.134v1; NAT’L ALLIANCE ON MENTAL ILLNESS, GRADING THE 2012] health court” enjoys universal agreement,3 the term generally describes a specialized court for certain defendants with mental illnesses who choose to eschew traditional court processing in favor of a problem-solving approach involving court-ordered and court-supervised treatment.4 Currently, mental health courts vary in the charges and mental illness diagnoses they accept, their consideration of individuals with a history of violence, plea requirements, treatments offered, intensity and length of supervision, potential sanctions, and the impact of program completion on participants’ criminal cases.5 Mental health courts may follow a pre- or post-adjudication model.6 While early mental health courts typically limited eligibility to individuals charged with misdemeanors, mental health courts have increasingly opened their doors to accused felons and violent felons.7 Mirroring the expressed purpose of the Mentally Ill Offender Treatment and Crime Reduction Act of 2004, which authorizes federal funding for mental health courts,8 the primary goal of most mental health courts is to reduce recidivism, typically defined in terms of new arrests or convictions.9 It is unclear whether mental health courts actually reduce recidivism and, to the extent they do, what accounts for that success.10 Mental health court staff and participants have provided strong anecdotal support for the ability of these courts to decrease criminal behavior and increase treatment compliance,11 and it appears that participants’ experience with the courts has largely been positive. Most research to date has been descriptive rather than evaluative, however, and the quality of the research has varied significantly.12 Most studies are marred by methodological shortcomings,13 8. See Mentally Ill Offender Treatment and Crime Reduction Act of 2004, S. 1194, available at http://www.gpo.gov/fdsys/pkg/BILLS-108s1194enr/pdf/BILLS-108s1194enr.pdf (“The purpose of this Act is to increase public safety by facilitating collaboration among the criminal justice, juvenile justice, mental health treatment, and substance abuse systems.”). 9. See, e.g., David Cooke, Diversion from Prosecution: A Scottish Experience, in WHAT WORKS: REDUCING REOFFENDING 173, 185 (James McGuire ed., 1995) (arguing that reconviction rates, the typical outcome measure used in treatment programs for offenders with mental illnesses, are the most sensible measure of success because “[r]econviction is the one objective criterion that can be applied irrespective of the presenting psychological problem, or the therapeutic approach adopted in tackling this problem,” “can be used to determine whether the public interest is being well served” by programs, and “may assist in the identification of appropriate and non-appropriate referrals”); Sarah L. Miller & Abigayl M. Perelman, Mental Health Courts: An Overview and Redefinition of Tasks and Goals, 33 LAW & PSYCHOL. REV. 113, 122 ( 2009 ) (characterizing available research as suggesting that the primary objective of mental health courts is to influence criminal justice outcomes, such as number of arrests and recidivism rates). 10. See ALMQUIST & DODD, supra note 4, at 21 (observing that very little empirical evidence exists on the impact of mental health courts and that “[w]hat is not yet known is why some individuals do well in mental health courts and others do not, or why certain programs seem to be more effective than others.”) (emphasis in original); Steven K. Erickson et al., Variations in Mental Health Courts: Challenges, Opportunities, and a Call for Caution, 42 COMMUNITY MENTAL HEALTH J. 335, 337 (2006) (remarking that “the paucity of research regarding [mental health courts’] effectiveness is noteworthy.”). For a recent evaluation of the cost-effectiveness of mental health courts, see Richard Frank & Thomas G. McGuire, Mental Health Treatment and Criminal Justice Outcomes 29–30, 36 (Nat’l Bureau of Econ. Research, Working Paper No. 15858, 2010), available at http://ssrn.com /abstract=1583799 (concluding that some, but not all, evaluations of mental health courts show a reduction in criminal activity but that little evidence connects the mental treatment component of the courts to decreases in recidivism). 11. See ALMQUIST & DODD, supra note 4, at 21; Susan Stefan & Bruce J. Winick, A Dialogue on Mental Health Courts, 11 PSYCHOL. PUB. POL’Y & L. 507, 507 (2005) (“The efficacy of the mental health court model has not as yet been demonstrated empirically, although some anecdotal reports have suggested that it is a promising development.”). 12. See ALMQUIST & DODD, supra note 4, at 21–22; CTR. FOR BEHAVIORAL HEALTH SERVS. CRIMINAL JUSTICE RESEARCH, INTERVENTION FACT SHEET: MENTAL HEALTH COURTS ( 2009 ), available at http://www.cbhs-cjr.rutgers.edu/pdfs/MentalHealthCourts.pdf (“Although there are numerous descriptive accounts and anecdotal assessments of the positive impact of [mental health courts], little reliable research has been done to assess the impact of [mental health courts] on the behavioral health, criminal justice, or employment futures of those who have participated in [mental health courts].”) (emphasis in original); Arthur J. Lurigio & Jessica Snowden, Putting Therapeutic 2012] such as including inadequate outcome measures and short follow-up periods, which limit their worth.14 The few rigorous studies that have been published have reached generally positive but inconsistent conclusions,15 ranging from finding no effect on re-arrest rate to a decrease in recidivism by mental health court participants of fifteen percent at eighteen months.16 Some forensic psychologists have suggested that, to the extent mental health courts do reduce recidivism, this result may stem from courts’ attendance to needs that are unrelated to offenders’ mental illnesses.17 While it is certainly important, as an empirical matter, to determine the extent to which mental health courts reduce recidivism, the concern of this Article is largely theoretical. Its guiding thesis is that a coherent theoretical justification should support the decision to create a separate system of Jurisprudence into Practice: The Growth, Operations, and Effectiveness of Mental Health Court, 30 JUST. SYS. J. 196, 197 ( 2009 ). 13. See ALMQUIST & DODD, supra note 4, at 21–22 (listing methodological shortcomings of most studies); CTR. FOR BEHAVIORAL HEALTH SERVS. CRIMINAL JUSTICE RESEARCH, supra note 12; Lurigio & Snowden, supra note 12, at 197, 214; Nancy Wolff & Wendy Pogorzelski, Measuring the Effectiveness of Mental Health Courts, 11 PSYCHOL. PUB. POL’Y & L. 539, 540 (2005) (explaining that the descriptive evaluations of mental health courts have all the limitations of early drug court evaluations, which include poor research designs and methods). 14. ALMQUIST & DODD, supra note 4, at 21–22 (noting that most studies did not follow participants beyond twelve months); CTR. FOR BEHAVIORAL HEALTH SERVS. CRIMINAL JUSTICE RESEARCH, supra note 12 (explaining that no randomized controlled trial of mental health courts has been conducted, and the evidence that exists is based on small numbers of clients, non-equivalent comparison groups, and short follow-up periods); Lurigio & Snowden, supra note 12, at 197. 15. See ALMQUIST & DODD, supra note 4, at 21, 23–25; Lurigio & Snowden, supra note 12, at 197; Jennifer L. Skeem, Sarah Manchak & Jillian K. Peterson, Correctional Policy for Offenders with Mental Illness: Creating a New Paradigm for Recidivism Reduction, 35 LAW & HUM. BEHAV. 110, 113, 115 (2010) (Tables 1, 2). 16. See Skeem, Manchak & Peterson, supra note 15, at 113, 115 (Tables 1, 2); cf. ALMQUIST & DODD, supra note 4, at 21–25 (reviewing peer-reviewed studies whose methodological rigor meets minimal standards and concluding that preliminary evidence suggests that mental health court participation is associated with lower recidivism rates). A recent, particularly well-designed study funded by the John D. and Catherine T. MacArthur Foundation found that mental health court participation resulted in a lower annualized re-arrest rate, fewer post-eighteen-month arrests, and fewer post-eighteen-month incarceration days than treatment as usual. See Steadman et al., Effect of Mental Health Courts on Arrests and Jail Days, supra note 2 (utilizing an experimental design that included treatment and comparison samples from multiple locales). The study found that both clinical and criminal justice factors—but particularly criminogenic factors—were associated with better public safety outcomes among mental health court participants. Id. at 167, 171. These factors included lower pre-eighteen-month arrests and incarceration days, treatment at baseline, refraining from using illegal substances, and a diagnosis of bipolar disorder (as opposed to schizophrenia or depression). Id. at 171. 17. See Skeem, Manchak & Peterson, supra note 15, at 120 (“[T]o the extent that staff intuitively focus on changing an individual’s general risk factors for crime, programs may be more effective in reducing criminal behavior than those that bank more exclusively on psychiatric services.”); id. at 121 (suggesting that programs like mental health courts are more likely to be effective when they apply core correctional practices, mitigate the criminogenic effects of unhealthy social environments (like by providing supported employment), and target factors that “get an offender in trouble” (like antisocial influences)). justice for a historically stigmatized population.18 In essence, some theory of sentencing or social welfare should be capable of explaining why it is appropriate to segregate offenders with mental illnesses and why coercive treatment is more appropriate for these individuals than traditional sentencing. In addition, once a potential justification has been identified, any empirical assumptions necessary to the internal coherence of that theory should survive scrutiny.19 If existing evidence contradicts necessary presuppositions—or if a coherent theory supporting the existence of the courts cannot be identified at all—then the legitimacy of the mental health court venture is in doubt.20 Thus far, commentators have largely limited their inquiries to the practical effects of mental health courts. In particular, some commentators have criticized the emasculated role of defense counsel in mental health courts21 and the courts’ net-widening effects.22 Others have expressed concerns about the coercive nature of the courts,23 offenders’ competence 18. Persons with mental illnesses have suffered isolation and stigmatization throughout our nation’s history. See, e.g., Leonard S. Rubenstein, Ending Discrimination Against Mental Health Treatment in Publicly Financed Health Care, 40 ST. LOUIS U. L.J. 315, 349–50 (1995). The findings in the Americans with Disabilities Act stress that, “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2) (2006). 19. See Jeffrie G. Murphy, Introduction, in PUNISHMENT AND REHABILITATION 1, 4 (Jeffrie G. Murphy ed., 1973) (explaining that philosophical theories may presuppose empirical claims for their truth or intelligibility and that philosophers have an obligation to keep informed of relevant scientific work pertaining to their theoretical presuppositions). 20. See Nancy Wolff, Courts as Therapeutic Agents: Thinking Past the Novelty of Mental Health Courts, 30(3) J. AM. ACAD. PSYCHIATRY & L. 431, 433–34 (2002). 21. See Timothy Casey, When Good Intentions Are Not Enough: Problem-Solving Courts and the Impending Crisis of Legitimacy, 57 SMU L. Rev. 1459, 1483 (2004); Stacey M. Faraci, Slip Slidin’ Away? Will Our Nation’s Mental Health Court Experiment Diminish the Rights of the Mentally Ill?, 22 QLR 811, 825, 838–40, 844–45 (2004); Tamar M. Meekins, “Specialized Justice”: The Over Emergence of Specialty Courts and the Threat of a New Criminal Defense Paradigm, 40 SUFFOLK U. L. REV. 1, 1–55 (2006); Erickson et al., supra note 10, at 337, 340; Wolff & Pogorzelski, supra note 13, at 558–59; see also Mae C. Quinn, Whose Team Am I on Anyway: Musings of a Public Defender about Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37, 37 (2001) [hereinafter Whose Team] (analyzing and critiquing the role of defense counsel in context of drug treatment courts). 22. See Allison D. Redlich et al., Patterns of Practice in Mental Health Courts: A National Survey, 30 LAW & HUM. BEHAV. 347, 348 (2006); Tammy Seltzer, Mental Health Courts: A Misguided Attempt to Address the Criminal Justice System’s Unfair Treatment of People with Mental Illness, 11 PSYCHOL. PUB. POL’Y & L. 570, 581–82 (2005); Faraci, supra note 21, at 850; Stefan & Winick, supra note 11, at 518. 23. See Robert Bernstein & Tammy Seltzer, Criminalization of People with Mental Illness: The Role of Mental Health Courts in System Reform, 7 UDC/DCSL L. REV. 143, 150–51 ( 2003 ); Casey, supra note 21, at 1498–99; Faraci, supra note 21, at 845–47; Allison D. Redlich, Voluntary, But Knowing and Intelligent?, 11 PSYCHOL. PUB. POL’Y & L. 605 (2005); Seltzer, supra note 22, at 574– 75, 582; Stefan & Winick, supra note 11, at 512. 2012] to consent to diversion,24 and infringement on participants’ privacy.25 Finally, others have pointed to the increased discretionary power and partiality of specialty court judges26 and the potential of these courts to divert resources from law-abiding individuals with mental illnesses.27 This Article marks the first attempt to canvass and scrutinize theoretical justifications for mental health courts.28 To date, mental health court judges and advocates have identified two utilitarian theories to justify the existence of the courts:29 therapeutic jurisprudence and a narrow form of rehabilitation.30 Therapeutic jurisprudence is the most popular justification for mental health courts.31 This academic discipline, developed in the early 1990s by Professors David B. Wexler and Bruce J. Winick,32 encourages the use of social science to investigate the ways in which a legal rule or practice affects the psychological and physical wellbeing of offenders and other legal actors.33 Therapeutic jurisprudence proposes that, other things being equal, the law should be restructured to accomplish therapeutic goals.34 Therapeutic jurisprudents point to the antitherapeutic effects of mandatory incarceration35 and assume that the coercive provision of mental health treatment will have a positive therapeutic impact on participants by addressing the source of their underlying criminal problem.36 In addition, a few mental health court judges have suggested a second possible theory—a form of therapeutic or medical rehabilitation—as animating their courts.37 Therapeutic rehabilitation, which gained prominence in the mid-twentieth century through the writings of Karl Menninger,38 Benjamin Karpman,39 and others,40 is based on a medical 2012] model of crime.41 According to this theory, criminal behavior is symptomatic of mental illness or personality disorder.42 In essence, offenders are considered “sick” and in need of a state-coerced “cure” to address their underlying sources of criminality.43 Therapeutic rehabilitation holds that treatment—not traditional sentencing or incarceration—is necessary to transform criminals, whose acts are the product of pathology, into law-abiding individuals.44 Mental health court proponents appear to embrace a brand of therapeutic rehabilitation based on two propositions. First, mental health courts justify segregating and diverting individuals with mental illnesses from the traditional justice system on the basis that their illnesses likely contributed to their criminal behavior. Second, and relatedly, mental health courts operate under the assumption that the amelioration of mental illness symptoms will reduce the likelihood of future criminal behavior. In other words, by treating individuals’ mental illnesses, mental health courts will rehabilitate offenders into law-abiding citizens. This Article examines the theories of therapeutic jurisprudence and therapeutic rehabilitation and ultimately finds both unavailing for a substantial proportion of the offenders diverted into mental health courts. A careful review of the definition of therapeutic jurisprudence reveals that the structure and aim of this discipline preclude its use as a justification for mental health courts. The creators of therapeutic jurisprudence have consistently stressed that health is not a transcendent norm, and, in the face of significant normative conflict, therapeutic jurisprudence does not provide a means to mediate between competing values.45 Because mental health courts express values that conflict substantially with those endorsed by the traditional criminal justice system, therapeutic jurisprudence is inadequate to justify the existence of mental health courts. criminal justice system should serve preventative, not punitive, ends and treat the origins of criminality). 41. For a description of the tenets and evolution of therapeutic rehabilitation, see EDGARDO ROTMAN, BEYOND PUNISHMENT: A NEW VIEW ON THE REHABILITATION OF CRIMINAL OFFENDERS 60–63 (1990). Most of the criticism of rehabilitation in the 1970s was aimed at the therapeutic model of rehabilitation. Id. at 5. 42. See Murphy, supra note 19, at 5; Karpman, Criminal Psychodynamics: A Platform, supra note 39, at 119 (arguing that “criminality is but a symptom of insanity”). 43. See ROTMAN, supra note 41, at 5. 44. See WOOTTON, supra note 40, at 77, 79; Karpman, Criminal Psychodynamics: A Platform, supra note 39, at 128, 131. 45. See Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 191, 198; David B. Wexler & Robert F. Schopp, Therapeutic Jurisprudence: A New Approach to Mental Health Law, in HANDBOOK PSYCHOL. & L. 361, 373 (Dorothy K. Kagehiro & William S. Laufer eds., 1992). Moreover, the penal theory of therapeutic rehabilitation—at least as envisioned by mental health court advocates—is largely unavailable as a justification for mental health courts because the factual assumptions underlying this theory are belied by scientific evidence. As Professor Stephen J. Morse has argued for decades,46 social and psychological research demonstrates that the criminal acts of individuals with mental illnesses often do not stem from their disorders but may arise from a number of motivations.47 Since many mental health courts do not require a demonstrated nexus between an individual’s mental illness and his criminal offense,48 courts’ assumption of a causal link appears misplaced. In addition, the weight of recent scientific evidence demonstrates that mental illness is not a direct contributor to recidivism for most offenders with mental illnesses.49 Instead, such offenders often simply exhibit the same risk factors—such as substance abuse, family problems, and antisocial tendencies—as other offenders.50 It is these risk factors, not symptomatic mental illness, that directly contribute to criminal activity for a majority of individuals with mental illnesses. These two assertions—that crimes are often not the product of mental illness, and that mental illness is usually not a significant contributor to recidivism—might strike some readers as counterintuitive. Indeed, perhaps in part due to the relentless portrayal of individuals with mental illnesses as dangerous and impulsive by the media,51 many of us believe in a strong, causal relationship between mental illness and violent or criminal behavior.52 Even some advocates of individuals with mental illnesses assume their criminal acts are often symptomatic of their disorders.53 Decades of social science research, however, demonstrate that this belief may be fueled more by stigma and stereotype than by reality. This Article is organized in the following manner. Part I defines therapeutic jurisprudence and explores its normative potential. It concludes by listing sources of normative conflict between the values expressed by mental health courts and those of retribution and deterrence, two theories of punishment that predominate in the traditional justice system. Part II investigates the potential of therapeutic rehabilitation to justify the existence of mental health courts. It defines therapeutic rehabilitation and identifies the central empirical assumptions of this theory in the context of mental health courts. The Article next draws on social science research to investigate the relationship between mental illness and crime and suggests that, to the extent mental health courts purport to target individuals whose crimes and recidivistic tendencies stem from their mental illnesses, mental health courts are currently overinclusive. The Article concludes by suggesting other theories of punishment or social welfare that potentially justify the existence of these specialty courts. I. THERAPEUTIC JURISPRUDENCE Many mental health court judges, including the judge who founded one of the earliest and most widely emulated courts in Broward County, Florida, in 1997,54 claim that therapeutic jurisprudence provides them are actually dangerous.”); Bruce G. Link & Ann Stueve, Evidence Bearing on Mental Illness as a Possible Cause of Violent Behavior, 17 EPIDEMIOLOGIC REV. 172 (1995) (finding that symptoms of mental illness are strongly connected with fear of potential violence); Monahan, supra note 51 (demonstrating that the belief that mental disorder is moderately associated with violence is historically invariant and culturally universal); Michael L. Perlin, On “Sanism”, 46 SMU L. REV. 373, 394–97 (1992) (discussing common societal myths held by the public and legal actors regarding mentally disabled individuals, including the myth that they are dangerous and frightening); Jo C. Phelan et al., Public Conceptions of Mental Illness in 1950 and 1996: What Is Mental Illness and Is It to Be Feared?, 41 J. HEALTH & SOC. BEHAV. 188 (2000) (finding a significant increase over time in the number of people describing individuals with mental illnesses as violent). 53. See infra note 183. 54. See Ginger Lerner-Wren, Broward’s Mental Health Court: An Innovative Approach to the Mentally Disabled in the Criminal Justice System, FUTURE TRENDS ST. CTS. 3 (2000), available at http://contentdm.ncsconline.org/cdm4/item_viewer.php?CISOROOT=/spcts&CISOPTR=184&REC=1 (articulating a central goal as applying “a therapeutic approach to the processing of offenders to better assist them and family in the recovery process and in assuming personal responsibility for their comprehensive health needs”); id. (identifying one critical feature of Broward’s mental health court as “wholly adopt[ing] and appl[ying] the principles of Therapeutic Jurisprudence—a legal construct that advances the Courts’ role as an active therapeutic agent in the recovery process”). theoretical grounding for the courts.55 Therapeutic jurisprudence contributes to a deeper understanding of the law by recognizing that legal rules, legal procedures, and the approaches taken by legal actors serve as social forces that may produce therapeutic or antitherapeutic consequences.56 Professor David B. Wexler, a cofounder of therapeutic jurisprudence, has indicated that the definition suggested by Professor Christopher Slobogin best captures the appropriate scope of therapeutic jurisprudence: “the use of social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects.”57 Much of the value of therapeutic jurisprudence exists in its service as a “lens” that prompts observers to question the therapeutic effect of legal arrangements and outcomes.58 Recently, Professor Wexler has stressed that therapeutic jurisprudence “is not and has never pretended to be a full-blown ‘theory,’”59 but instead is “simply a ‘field of inquiry’—in essence a research agenda—focusing attention on the often overlooked area of the impact of the law on psychological wellbeing and the like.”60 55. See, e.g., SCHNEIDER ET AL., supra note 36, at 39 (identifying therapeutic jurisprudence as having “formed the theoretical underpinning of mental health courts”); see also id. at 61 (describing mental health courts as a manifestation of therapeutic jurisprudence in the criminal justice system); Matthew J. D’Emic, The Promise of Mental Health Courts: Brooklyn Criminal Justice System Experiments with Treatment as an Alternative to Prison, 22 CRIM. JUST. 24, 25 (2007) (describing the Brooklyn Mental Health Court as “the latest incarnation of ‘therapeutic’” courts); Anchorage Coordinated Resources Project, Anchorage Mental Health Court, ALASKA COURT SYSTEM, http:// www.courts.alaska.gov/mhct.htm (last visited Jan. 8, 2012) (stating that the Anchorage Mental Health Court “is a voluntary ‘therapeutic’ or ‘problem-solving’ court . . . that hears cases involving individuals diagnosed with mental disabilities who are charged with misdemeanor offenses and focuses on their treatment and rehabilitation”). Commentators have also stressed the link between therapeutic jurisprudence and mental health courts. See, e.g., Faraci, supra note 21, at 816 (stating that mental health courts “employ a philosophy of therapeutic justice instead of punishment, deterrence and retribution.”); David Rottman & Pamela Casey, A New Role for Courts?, NAT’L INSTIT. JUST. J. 12, 15 (July 1999) (suggesting that “therapeutic jurisprudence arguably provides the underlying legal theory” for problem-solving courts); Shauhin Talesh, Mental Health Court Judges as Dynamic Risk Manager: A New Conception of the Role of Judges, 57 DEPAUL L. REV. 93, 125 (2007) (observing that “judges are using mental health courts as a jurisdictional grant of authority to implement therapeutic jurisprudence”). 56. Introduction, in LAW IN A THERAPEUTIC KEY xvii, xvii (David B. Wexler & Bruce J. Winick eds., 1996). 57. David B. Wexler, Reflections on the Scope of Therapeutic Jurisprudence, 1 PSYCHOL. PUB. POL’Y & L. 220, 223–24 (1995) (quoting Slobogin, supra note 33, at 196). 58. David B. Wexler, Therapeutic Jurisprudence and the Criminal Courts, 35 WM. & MARY L. REV. 279, 280 (1993). 59. David B. Wexler, From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part 1 (Ariz. Legal Stud., Discussion Paper No. 10-12, 2010), available at http://ssrn.com/abstract=1580129. 60. Id. 2012] One challenging aspect of therapeutic jurisprudence is its creators’ steadfast refusal to define “therapeutic” with precision.61 Encouraging “commentators to roam within the intuitive and common sense contours of the concept” to stimulate scholarly inquiry and debate,62 Professors Wexler and Winick have offered only the broadest guidance on what subjects may fall within the ambit of the term. Professor Winick, for instance, has suggested that anything that is “at least [in] some sense related to psychological functioning” could be characterized as therapeutic.63 Professors Winick and Wexler have acknowledged that one consequence of eschewing a stable definition is that opinions will diverge on what should count as therapeutic.64 Indeed, as Professor Slobogin has recognized, whether a legal rule, procedure, or approach is deemed therapeutic will likely vary according to the identity, ideology, interests, experience, values, and perspective of the evaluator.65 Regardless of the definition one chooses to adopt, there is very little empirical evidence on the impact—therapeutic or otherwise—of mental health courts.66 Even if empirical testing were to demonstrate consistently that mental health courts are more therapeutic for offenders with mental illnesses than the traditional criminal justice system—whether “therapeutic” were defined as decreasing recidivism, improving rates of treatment compliance, enhancing mental functioning, or in any other manner—this finding alone would not suffice to justify the adoption or sustenance of a mental health court. To explain this conclusion, it is necessary to analyze the normative strength of therapeutic jurisprudence. A. Normative Content of Therapeutic Jurisprudence Therapeutic jurisprudence is normative in orientation.67 Professor Wexler has conceded that “[t]he normative side of [therapeutic jurisprudence] is still being worked out,”68 but the discipline certainly has a “soft normative element”69 in that it is designed to inspire scholarship that may be useful for legal reform.70 As explained by Professor Winick: Therapeutic jurisprudence’s basic insight was that scholars should study [certain] consequences and reshape and redesign law in order to accomplish two goals—too [sic] minimize antitherapeutic effects, and[,] when it is consistent with other legal goals, to increase law’s therapeutic potential. Thus, therapeutic jurisprudence is an interdisciplinary approach to legal scholarship that has a law reform agenda.71 In essence, therapeutic jurisprudence calls for an exploration of the psychological, physical, and emotional consequences of the law and proposes that research results should factor into policy discussions underlying legal reform efforts.72 A key tenet of therapeutic jurisprudence is that a determination of therapeutic or antitherapeutic consequences is predictably suggestive of legal reform only when normative values do not conflict.73 When the 67. Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 188. 68. Wexler, From Theory to Practice, supra note 59, at 1 n.4. 69. Id. 70. Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 185. Some judges and commentators have suggested that therapeutic jurisprudence employs a stable definition of “therapeutic” and has a stronger, consistent normative message in the context of problem-solving courts. See SCHNEIDER ET AL., supra note 36, at 39–66. This normative vision largely reduces to an endorsement of therapeutic rehabilitation when applied to offenders with mental illnesses. See id. at 47 (“[T]herapeutic jurisprudence suggests that, for accused with mental disorders, minor criminal acts in appropriate circumstances may more realistically be the manifestations of an untreated psychiatric illness and crumbling mental healthcare system.”); id. at 48 (articulating a “first principle” of therapeutic jurisprudence as the idea that “pursuing therapeutic outcomes is an appropriate response to the causes of the ‘crime’ for some mentally disordered accused”). I address the potential of therapeutic rehabilitation to justify mental health courts in the next Part. 71. Winick, Therapeutic Jurisprudence and Problem Solving Courts, supra note 36, at 1063. 72. David B. Wexler & Bruce J. Winick, Therapeutic Jurisprudence as a New Approach to Mental Health Law Policy Analysis and Research, 45 U. MIAMI L. REV. 979, 1004 (1991); see also Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 188 (observing that “[a]ccomplishing positive therapeutic consequences or eliminating or minimizing antitherapeutic consequences . . . emerges as an important objective in any sensible law reform effort.”). 73. See, e.g., Wexler & Winick, Therapeutic Jurisprudence as a New Approach, supra note 72, at 984 (“If the therapeutically appropriate legal arrangements are not normatively objectionable on other grounds, those arrangements may point the way toward law reform.”); Winick, The 2012] adoption of a therapeutic legal approach would conflict to a significant extent with other legal norms,74 therapeutic jurisprudence does not provide a way to resolve the conflict.75 Consistently, Professors Wexler and Winick have emphasized that psychological and physical health are not transcendent norms76 and that therapeutic jurisprudence “in no way suggests that therapeutic considerations should trump other concerns.”77 Professor Winick has observed that goals.78 although, in general, positive therapeutic consequences should be valued and antitherapeutic consequences should be avoided, there are other consequences that should count, and sometimes count more. There are many instances in which a particular law or legal practice may produce antitherapeutic effects, but nonetheless may be justified by considerations of justice or by the desire to achieve various constitutional, economic, environmental, or other normative values.79 Therapeutic jurisprudence offers no opinion—in general or in specific instances—as to whether therapeutic considerations should be valued more heavily than autonomy, fairness, accuracy, consistency, perceived legitimacy of the criminal justice system, public safety, or a host of other In addition to suggesting legal reform when normative values converge, “[t]herapeutic jurisprudence suggests that, other things being equal, the law should be restructured to better accomplish therapeutic Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 191 (“Although therapeutic jurisprudence suggests that law should be used to promote mental health and psychological functioning, it does not suggest that psychological and physical health is a transcending norm. It suggests that law reform should be informed by this value, but only when otherwise normatively unobjectionable.”). But see Quinn, RSVP, supra note 61, at 552–53 (observing that, despite apparent tension between therapeutic and other norms, Professor Wexler has urged criminal defense attorneys to adopt proposed “best practices” to permit greater therapeutic possibilities). 74. At times, Professors Wexler and Winick have suggested that therapeutic values may control when they “strongly” outweigh competing considerations. See, e.g., Bruce J. Winick, Applying the Law Therapeutically in Domestic Violence Cases, 69 UMKC L. REV. 33, 79 (2000). It is unclear how, if at all, therapeutic jurisprudence assists in the weighing of competing values. 75. See, e.g., Wexler & Schopp, supra note 45, at 373 (“As a research program, therapeutic jurisprudence does not resolve conflicts among competing values.”); Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 198 (“Although therapeutic jurisprudence is premised on the notion that, other things being equal, health is a value that law should seek to foster, it makes no attempt to assign relative values to the various other goals of law.”). 76. Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 191. 77. Wexler, Therapeutic Jurisprudence and the Criminal Courts, supra note 58, at 280. 78. Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 191. 79. See Wexler, Therapeutic Jurisprudence and the Criminal Courts, supra note 58, at 280; David B. Wexler, Two Decades of Therapeutic Jurisprudence, 24 TOURO L. REV. 17, 20–21 (2008). goals.”80 Professor Wexler has acknowledged that identifying when nontherapeutic values stand in equipoise will be difficult and often contestable and that therapeutic jurisprudence is not equipped to resolve this debate.81 Therapeutic jurisprudence recognizes the value of physiological, physical, and emotional consequences but does not comment on the relative value of other legal goals or effects.82 Critics have observed that, without articulating rules for determining when other values are equal, therapeutic jurisprudence may promote therapeutic values in ways that appear arbitrary.83 When therapeutic considerations exist in tension with other criminal justice norms, scholars and policy makers must appeal to an overarching normative framework to resolve the conflict.84 The particular ethical or political theory should assign relative weights to the conflicting values.85 As normative agreement in criminal law and procedure is elusive, so too will be consensus on how therapeutic considerations should be weighed against values of autonomy, fairness, accuracy, consistency, and legitimacy.86 Recognizing this limitation, scholars have urged proponents 80. Wexler, Therapeutic Jurisprudence and the Criminal Courts, supra note 58, at 280 (emphasis added); see also Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 188 (“Therapeutic jurisprudence suggests that, other things being equal, positive therapeutic effects are desirable and should generally be a proper aim of law, and that antitherapeutic effects are undesirable and should be avoided or minimized.” (emphasis in original)). 81. Wexler, Therapeutic Jurisprudence and the Criminal Courts, supra note 58, at 280; see also David B. Wexler & Bruce J. Winick, Therapeutic Jurisprudence and Criminal Justice Mental Health Issues, 16 MENTAL & PHYSICAL DISABILITY L. REP. 225, 226 (1992). 82. See Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 198 (“Although therapeutic jurisprudence is premised on the notion that, other things being equal, health is a value that law should seek to foster, it makes no attempt to assign relative values to the various other goals of law.”). 83. See John Petrila, Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence, 10 N.Y.L. SCH. J. HUM. RTS. 877, 890 (1993) (reviewing ESSAYS IN THERAPEUTIC JURISPRUDENCE (David B. Wexler & Bruce J. Winick eds., 1992)). 84. See Wexler & Winick, Therapeutic Jurisprudence as a New Approach, supra note 72, at 983 (specifying that “[t]he premise that a rule or practice is antitherapeutic . . . does not support the conclusion that the rule should be changed in the absence of a shared, although perhaps unarticulated, normative major premise.”). 85. See Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 198 (“Resolution of this conflict would require use of an overarching theory of value that would assign weights to the various values in question. . . . To resolve such conflicts of value, one must go outside therapeutic jurisprudence to some ethical or political theory that establishes a hierarchy of values.”). 86. See Wexler & Winick, Therapeutic Jurisprudence as a New Approach, supra note 72, at 985 (“It may be difficult to reach agreement on standards for conducting such a comparison of perhaps conflicting therapeutic consequences; this essentially involves the sharing of normative premises about which there may be no consensus.”). Ken Kress offers this observation and thoroughly explores its implications in Therapeutic Jurisprudence and the Resolution of Value Conflicts: What We Can Realistically Expect, in Practice, from Theory, 17 BEHAV. SCI. & L. 555 (1999). 2012] of “therapeutic” policy proposals to specify their normative assumptions, thus allowing for examination and critique.87 It is worth emphasizing that the inability of therapeutic jurisprudence to resolve significant normative conflict does not deprive it of value or consequence. Therapeutic jurisprudence illuminates an important category of legal effects that has been largely neglected.88 An understanding of the psychological, physical, and emotional effects of legal approaches certainly should inform the normative dispute regarding the ordering of competing values and contribute to the precise weighing of legal alternatives.89 While therapeutic jurisprudence does not resolve a debate among values, it does sharpen the inputs and enrich the discussion.90 B. Normative Conflict Between Mental Health Courts and the Traditional Criminal Justice System Ultimately, therapeutic jurisprudence is unable to justify the existence of mental health courts because the decision to create and sustain a mental health court is not free of significant normative conflict. Increasingly, scholarship seeking to justify the imposition of punishment blurs the boundaries between retributivism91 and utilitarianism,92 and many modern thinkers recognize that a mix of retributive and preventative considerations should guide sentencing in the criminal justice system.93 While rehabilitating offenders remains an important goal of many sentencing and punishment schemes,94 retribution and deterrence, along with 87. See Kress, supra note 86, at 562; Petrila, supra note 83, at 889 n.35 (stating, after discussing the failure to articulate competing norms and values with precision, that “the application of therapeutic jurisprudence principles appears somewhat arbitrary and dependent on the subjective preferences of people writing about it.”); Slobogin, supra note 33, at 210–18 (exploring the difficulty of the internal and external balancing of competing norms called for by therapeutic jurisprudence). 88. See David Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. COOLEY L. REV. 125, 125 (2000); Wexler & Winick, Therapeutic Jurisprudence as a New Approach, supra note 72, at 983. 89. See Wexler & Schopp, supra note 45, at 373 (stating that therapeutic jurisprudence “seeks information needed to promote certain goals and to inform the normative dispute regarding the legitimacy or priority of competing values”); Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 191 (stating that therapeutic jurisprudence calls for an awareness of therapeutic considerations and “enables a more precise weighing of sometimes competing values.”). 90. See Kress, supra note 86, at 557 (stating that therapeutic jurisprudence may “change one’s view of the import, recommendation, or weight of some value”); Winick, The Jurisprudence of Therapeutic Jurisprudence, supra note 34, at 206 (“When therapeutic and other normative values conflict, the conflict sharpens the debate, but does not resolve it.”); id. at 195 (“Therapeutic jurisprudence cannot resolve this debate but can enrich the decision-making process.”). 91. See infra notes 97–103 and accompanying text. 92. For a brief discussion of utilitarianism, see supra note 29. 93. See Cahill, supra note 29. 94. Many commentators have recognized that problem-solving courts demonstrate a resurgence incapacitation, are generally considered the dominant goals of the modern penal system.95 The goals, values, and communicative message of mental health courts, largely consistent with a theory of rehabilitation, stand in sharp contrast to those espoused by retributive and deterrence theories of punishment.96 In particular, mental health courts’ singular concern with treatment, as opposed to blame, may violate retributivism’s cornerstone principles of proportionality and just deserts, convey harmful and stigmatizing messages about offenders, and trivialize underlying criminal acts. Mental health courts may also undermine goals of specific and general deterrence by offering scarce social goods to court participants, thus potentially incentivizing individuals to commit crimes in order to receive these goods. 2012] 1. Ignoring Proportionality and Just Deserts Retributivism, the oldest and most popular justification of punishment,97 defies easy definition.98 One strand of retributivism theorizes that deserved punishment, justified by the moral culpability and desert of the offender, is an intrinsic good.99 Retributivists, in general, believe that punishment is just so long as it is proportionate to the moral culpability of the offender and the wrong he committed.100 In essence, punishment is an act of reciprocity: the state exacts from the offender the measure exacted by his wrongful act.101 Immanuel Kant argued that offenders’ punishment must match—in kind and degree—the suffering or deprivation endured by their victims,102 but modern retributivists accept “rough” proportionality between penalties for separate crimes.103 Mental health courts embrace a contrary and antagonistic purpose. As discussed below, mental health courts, while not finding eligible offenders 97. See Paul Butler, Retribution, For Liberals, 46 UCLA L. REV 1873, 1874 (1999); Leigh Goodmark, The Punishment of Dixie Shanahan: Is There Justice for Battered Women Who Kill?, 55 U. KAN. L. REV. 269, 288 (2007). 98. See John Cottingham, Varieties of Retribution, 29 PHIL. Q. 238 (1979) (delineating nine distinct retributivist theories). For recent scholarship complicating the dominant understanding of retributivism and challenging the strict divide between retributivist and consequentialist theories of punishment, see Mitchell N. Berman, Two Kinds of Retributivism, in PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW 433 (R.A. Duff & Stuart P. Green eds., 2011). 99. G. W. F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT 127 (Allen W. Wood ed., H. B. Nisbet trans., Cambridge Univ. Press 1991) (1821) (“[T]he universal feeling of peoples and individuals towards crime is, and always has been, that it deserves to be punished, and that what the criminal has done should also happen to him.”) (emphasis in original); Michael Moore, The Moral Worth of Retribution, in RESPONSIBILITY, CHARACTER, AND THE EMOTIONS 179, 179 (Ferdinand Schoeman ed., 1987) (“Retributivism is the view that punishment is justified by the moral culpability of those who receive it. A retributivist punishes because, and only because, the offender deserves it.”). While traditional retributivism holds that proportionate punishment is an intrinsic good, some retributivists (in particular, those arguing that retributive punishment promotes crime control or provides pleasure or utility) may view retributive punishment as an instrumental good. See Cahill, supra note 29, at 4–5; see also Berman, supra note 98 (arguing that retributivism may be viewed as a subtype of instrumentalist justifications for punishment). 100. Butler, supra note 97, at 188 (“Retribution measures just punishment by considering whether there is proportionality between crime and punishment.”). 101. See HEGEL, supra note 99, at 127; IGOR PRIMORATZ, JUSTIFYING LEGAL PUNISHMENT 70 (1989) (“Retribution is an act of reciprocity, and thus something that the person on whom it is inflicted has deserved; therefore, it is just, justified, legitimate.”). 102. See IMMANUEL KANT, METAPHYSICAL ELEMENTS OF JUSTICE 138 (John Ladd trans., Hackett Pub. Co. 2d. ed. 1999) (1797) (discussing the principle of punishment in proportion to the wrong committed and arguing, “If you vilify him, you vilify yourself; if you steal from him, you steal from yourself; if you kill him, you kill yourself.”). 103. See H. L. A. HART, PUNISHMENT AND RESPONSIBILITY 234 (1968) (“[M]odern retributive theory is concerned with proportionality. . . . [I]t is concerned with the relationships within a system of punishment between penalties for different crimes, and not with the relationship between particular crimes and particular offences.”). Mexico; Butler County, Ohio; Davidson County, Tennessee; and Salt Lake County, Utah. For many of these courts, information on eligibility criteria is publicly available, a fact that provides some confidence that the lack of a specified nexus requirement holds significance. There are dozens of additional mental health courts without obvious nexus requirements, but so little information is publicly available about the workings of these courts that any representation about their lack of a specific criterion would be inappropriate.213 The creators of mental health courts may assume that requiring eligible offenders to produce a diagnosis or other evidence of mental illness suffices to ensure that their criminal behavior was a product of that mental illness. This assumption, however, is belied by research on the psychological precursors to crime.214 b. The Varying Motivations for Crime of Individuals with Mental Illnesses Individuals diagnosed with Axis I disorders215 are able to control their behavior and engage in rational thought much of the time.216 Thus, offenders with mental illnesses, like nondisordered offenders, may 213. It is of course possible that our searches failed to uncover some public information on mental health court eligibility criteria. It is also probable that some judges, district attorneys, or treatment teams typically require evidence of a connection between an individual’s offense and his mental illness, but this practice is not mandated in a court rule or publicized on a court website or in a brochure or manual. Finally, mental health courts evolve quickly, and some of the courts listed above might have changed their procedures since my analysis was conducted in March 2010. 214. See infra notes 250–53, 260, and 274–99 and accompanying text. 215. See supra notes 190–91 and accompanying text. 216. See Kansas v. Crane, 534 U.S. 407, 412 (2002) (observing that “most severely ill people— even those commonly termed ‘psychopaths’—retain some ability to control their behavior”); THOMAS G. GUTHEIL & PAUL S. APPELBAUM, CLINICAL HANDBOOK OF PSYCHIATRY AND THE LAW 221 (3d ed. 2000) (“The mere presence of psychosis, dementia, mental retardation, or some other form of mental illness or disability is insufficient in itself to constitute incompetence.”); Stephen J. Morse, Crazy Behavior, Morals and Science: An Analysis of Mental Health Law, 51 S. CAL. L. REV. 527, 573 (1978) (discussing a meta-analysis of 300 studies of schizophrenia and quoting the conclusion that “it is clear that most schizophrenics function no differently on these experimental tests from most normals”); Bruce J. Winick, Ambiguities in the Legal Meaning and Significance of Mental Illness, 1 PSYCHOL. PUB. POL’Y & L. 534, 569 (1995) (“Not all individuals suffering from the major mental illnesses will be rendered cognitively or volitionally impaired . . . . The extent of functional impairment produced by these conditions varies widely within each diagnostic category, with the result that assignment of a particular diagnosis does not imply a specific level of impairment or disability.”). See generally Morse, supra, at 573. (“It is a striking clinical commonplace that crazy persons behave normally a great deal of the time and in many ways. Even when they are in the midst of a period of crazy behavior, much of their behavior will be normal. Further, between crazy periods crazy people are not reliably distinguishable from normal persons.”). 2012] experience differing motivations for committing crimes.217 Research demonstrates that, while some individuals with mental illnesses may commit minor offenses that appear to stem from their disorders (such as disorderly conduct), others may commit “survival” crimes (such as petty theft and panhandling) because they are poor.218 Still others may commit crimes of a more serious nature (such as burglary and assault) where their mental illnesses appear incidental or secondary to their criminality.219 Reflecting on their experience, two professors of psychiatry have stated that the vast majority of the crimes committed by chronic mentally ill persons are misdemeanors . . . committed when the person is not in the psychotic phase of his or her illness. The behavior is usually goal-directed, such as wanting to acquire goods without paying for them, wanting to express anger, or wanting to go back to a psychiatric hospital.220 Thus, while some criminal behavior may derive from mental illness, much may simply effectuate the goals of the individual. Building on the work of Virginia Aldigé Hiday,221 Professor William H. Fisher and his colleagues proposed a taxonomy of offenders with mental illnesses based on how their illnesses affect their criminal behavior.222 These authors suggest that one category of offenders with mental illnesses includes “individuals whose offenses could be seen as directly attributable to their mental illness, such as the individual with a psychotic disorder whose paranoid delusions lead [him] to commit acts of violence.”223 Researchers speculate that this cohort of offenders is small.224 A second category of offenders with mental illnesses includes “individuals whose offenses could be characterized as indirectly attributable to their illness.”225 This group would include offenders whose mental illnesses contributed to their job loss, decline into poverty, and/or movement into environments rife with antisocial influences, all generic risk factors for criminal justice involvement.226 The offenses of these individuals will often include misdemeanor offenses and the manifestation of so-called “survival behavior.”227 A third category of offenders with mental illnesses, according to Professor Fisher and his colleagues, includes individuals with co-occurring character disorders and substance abuse, both of which are strong risk factors for offending, and those who have a long history of involvement with the juvenile and adult criminal justice systems.228 These researchers suggest that such individuals may have “more in common with other denizens of the county jail than with other clients of the mental health system.”229 Citing motor vehicle offenses like unlawfully attaching plates and serious charges like grand theft auto, drug trafficking, forgery, and passing bad checks, the authors opine that “[t]hese and other offenses fit neither the ‘misdemeanant’ nor the ‘deranged perpetrator of violence’ categories, but instead suggest criminal activity that may go forward independently or, indeed, in spite of the offenders’ mental illness.”230 Recently, one set of social scientists has estimated the percentage of all offenders with mental illnesses whose criminal activity is attributable to their disorders. In an April 2010 article, Professor Jennifer L. Skeem and her colleagues hypothesized, based on their review of psychological literature, that mental illnesses may directly contribute to the criminality of only about 10 percent of the mentally disordered offending population.231 They predict that, for the remaining 90 percent of offenders with mental illnesses, the effect of mental illness on criminal activity is fully mediated 223. Id. at 43. 224. See Hiday, supra note 221, at 525 (observing the existence of “a very small group” of seriously disordered individuals whose delusions lead them to commit violent crimes); Skeem, Manchak & Peterson, supra note 15, at 117–19. 225. Fisher et al., supra note 222, at 43. 226. Id. 227. Id. (stating that this category would correspond roughly to Hiday’s first category of “those committing misdemeanor offenses, some of which might not result in the arrest of a non-disordered person, and some which may involve so-called ‘survival behavior’”). 228. Id. at 43–44. 229. Id. at 44. 230. Id. 231. See Skeem, Manchak & Peterson, supra note 15, at 118. by factors such as poverty or social learning that similarly affect the general population.232 For the vast majority of offenders with mental illnesses, then, the correlation between their mental illnesses and criminal activity may be illusory.233 Consequently, it appears illegitimate for mental health courts to assume, without case-specific evidence, that an offender’s crimes were driven by his mental illness. This holds important ramifications for the potential of therapeutic rehabilitative theory to justify mental health courts. Mental health courts are predicated on the belief that the provision of mental health services reduces social risk because symptomatic mental illnesses contribute to criminal behavior. If mental illness contributed to the criminal act that brought an offender within the jurisdiction of the court, as a matter of logic one may deduce that providing mental health treatment to that individual should reduce his likelihood of committing a similar act in the future.234 If an offender’s mental illness was unrelated to his predicate criminal act, however, then, for mental health courts to serve a rehabilitative function for that individual (and others like him), evidence should show that certain mental illnesses, as a general matter, are predictive of recidivism. The next section reviews available empirical evidence on the degree to which mental illnesses affect recidivism. 2. Assumption that Symptomatic Mental Illness Directly Contributes to Recidivism A central and oft-expressed assumption of mental health courts is that mental illness drives the recidivism of individuals with mental illnesses. For instance, Probate Judge Jim Fuhrmeister, one of the founders of the Shelby County Mental Health Court in Alabama, has stated that, when an offender with mental illness does not receive treatment, “what happens is recidivism”—“[i]t just turns, basically, into a revolving door”—and that providing treatment should “lead to a turnaround in [participants’] lives.”235 Similarly, the judge of the mental health court in Jackson County, Michigan, has explained that mental health courts provide treatment to offenders with mental illnesses because “[t]hey’re just going 232. See id. at 116, 118. 233. See id. at 120 (emphasizing that “[e]ven among those with psychosis, symptoms directly cause crime for only a small fraction of offenders”). 234. See id. at 111, 120. 235. Amy Jones, County to Start Mental Health Court, SHELBY COUNTY REPORTER, June 24, 2010, http://www.shelbycountyreporter.com/2010/06/24/county-to-start-mental-health-court/. to recidivate if you don’t address the underlying pathology.”236 This sentiment has been repeated by mental health court judges across the country.237 The prevalence of the belief that symptomatic mental illness fuels recidivism is understandable. Certainly, individuals with mental illnesses are disproportionately represented in the criminal justice system. A 2009 study of more than 20,000 adults entering five local jails found serious mental illness in 14.5 percent of male and 31.0 percent of female inmates.238 These rates are three to six times higher than those found in the general population.239 The phenomenon of incarcerating individuals with mental illnesses has coincided with deinstitutionalization: according to Dr. Fuller Torrey of the National Institute of Mental Health, “approximately ninety-two percent of the people who would have been living in public psychiatric hospitals in 1955 were not living there in 1994.”240 Today, jails are the nation’s largest providers of mental health services.241 236. Chris Gautz, Mental-Health Court Celebrates Its First Anniversary, Honors First Two Graduates, JACKSON CITIZEN PATRIOT, Saturday Ed., Nov. 14, 2009, at A1, available at http://www .mlive.com/news/jackson/index.ssf/2009/11/mental-health_court_celebrates.html. 237. See, e.g., Brian Brueggemann, Mental Health Court to Open in October, BELLEVILLE NEWS DEMOCRAT, Aug. 24, 2006 (quoting Chief Judge Ann Callis as stating, “If we can identify people with mental illnesses when they first enter the criminal justice system and get them connected to a mental health program, we can help them manage their mental illness without further criminal activity in the future”); Hoover, supra note 178 (quoting Chief Judge Donald Hudson as stating that a key goal of the court is to “‘[stop] the revolving door’ of incarceration for people whose mental illness causes them to break laws or commit crimes”); HOPE Court Gives Offenders an Alternative to Jail Time, supra note 181 (quoting Presiding Judge Eric D. Martin as stating that without treatment “many persons with mental illness churn through the system over and over” and that his “[c]ourt is designed to get at the genesis of these problems [in providing treatment], to break that cycle, [and] reduce the crime rate”); Kathleen Brady Shea, Mental Health Courts on Horizon: Local Counties Want to Steer Ill Defendants into Treatment Instead of Jail, PHILA. INQUIRER, June 30, 2008, at B1 (quoting Delaware County Court Judge Frank T. Hazel as expressing that offenders with mental illnesses often reoffend because they don’t receive adequate treatment for their mental illnesses); see also supra note 37. 238. Henry J. Steadman et al., Prevalence of Serious Mental Illness Among Jail Inmates, 60 PSYCHIATRIC SERVICES 761, 764 ( 2009 ). This study has been touted as providing the “most reliable estimates of rates of serious mental illness for adults entering jails in the last 20 years.” COUNCIL OF STATE GOV’TS JUSTICE CTR., Council of State Governments Justice Center Releases Estimates on the Prevalence of Adults with Serious Mental Illnesses in Jails (June 1, 2009), available at http:// consensusproject.org/jc_publications/council-of-state-governments-justice-center-releases-estimates-onthe-prevalence-of-adults-with-serious-mental-illnesses-in-jails/MH_Prevalence_Study_brief_final.pdf. 239. R.C. Kessler et al., The Epidemiology of Co-Occurring Addictive and Mental Disorders: Implications for Prevention and Service Utilization, 66 AM. J. ORTHOPSYCHIATRY 17–31 (1996) (estimating that 5.4 percent of individuals in the United States have a serious mental illness). 240. E. FULLER TORREY, OUT OF SHADOWS: CONFRONTING AMERICA’S MENTAL ILLNESS CRISIS 8–9 (1997). 241. See Gregory L. Acquaviva, Note, Mental Health Courts: No Longer Experimental, 36 SETON HALL L. REV. 971, 978 (2006) (observing that, “in 1992, the Los Angeles County jail became the nation’s largest mental institution, with Cook County Jail, Illinois, and Riker’s Island, New York, as second and third respectively”). In 1972, Marc F. Abramson offered a theory—coined “criminalization”—to explain the disproportionate involvement of individuals with mental illnesses in the criminal justice system.242 The criminalization theory is premised on the belief that persons with mental illnesses become inappropriately involved with the criminal justice system because of failed mental health policy and service delivery.243 In particular, Dr. Abramson argued that law enforcement will arrest individuals with mental illnesses for their disordered behavior partially as a means to compensate for the limited ability of the civil commitment system to detain them involuntarily.244 While the criminalization theory was developed in response to heightened standards for civil commitment, some believe his hypothesis holds even greater promise for predicting the likely consequences of deinstitutionalization in the context of few community treatment options.245 According to adherents of the criminalization theory, the criminal behavior of individuals with mental illnesses is a product of inadequate mental health services and the expression of psychiatric symptoms.246 Adequate mental health treatment, then, should reduce the recidivism of these individuals.247 Recently, psychology and criminology scholars have pointed to a dearth of evidence that supports the criminalization hypothesis,248 but others continue to ascribe to this theory.249 Despite the popularity and current cache of the criminalization theory, no research exists demonstrating that mental illness is a principal or proximate cause of criminal behavior for most offenders with mental illnesses.250 Instead, the preponderance of scientific evidence indicates that, while offenders with mental illnesses may be at an elevated risk for reoffending (an issue of correlation),251 their disorders typically do not directly contribute to their re-arrest (an issue of causation).252 For the vast majority of offenders with mental illnesses, criminal behavior actually appears to be motivated by the same risk factors—such as substance abuse, procriminal attitudes, criminal associates, and unstable lifestyle— that motivate nondisordered offenders.253 a. Trivial Role of Mental Illness in Recidivism For much of the twentieth century, researchers’ attention was focused on the relationship between mental illness and violence.254 While some studies found that individuals with mental illnesses are no more likely to be violent than their non-ill neighbors,255 others have indicated that mental illness is a modest risk factor for violence,256 especially for individuals experiencing psychotic symptoms257 and co-occurring substance abuse.258 255. See, e.g., Rani A. Desai, Jail Diversion Services for People with Mental Illness: What Do We Really Know?, in COMMUNITY-BASED INTERVENTIONS, supra note 139, at 99, 102 (listing studies); Jane Byeff Korn, Crazy (Mental Illness Under the ADA), 36 U. MICH. J.L. REFORM 585, 612 & n.188 ( 2003 ) (same). 256. See, e.g., John Monahan, Clinical and Actuarial Predictions of Violence, in MODERN SCIENTIFIC EVIDENCE, § 7-2.2.1, at 314 (David Faigman et al. eds., 1997) (“Mental disorder may be a statistically significant risk factor for the occurrence of violence.”); John Monahan & Jean Arnold, Violence by People with Mental Illness: A Consensus Statement by Advocates and Researchers, 19 PSYCHIATRIC REHABILITATION J. 67, 70 (1996) (“The results of several recent large-scale projects conclude that only a weak association between mental disorders and violence exists in the community.”); Edward P. Mulvey & Jess Fardella, Are The Mentally Ill Really Violent?, PSYCHOL. TODAY, Nov./Dec. 2000, at 39 (“[R]ecently, . . . researchers . . . have concluded that there is a statistically significant association between mental illness and violence: Overall, the mentally ill are more likely to act out violently than the general public. However, this association is not very strong. . . . Also, the manner in which mental illness contributes to violence, when it does, varies considerably and is often far from clear.”); see also MICHAEL L. PERLIN, THE HIDDEN PREJUDICE 24 n.20, 40, 82 (2000) (discussing evidence regarding the relationship between mental illness and violence). 257. A 2009 meta-analysis of 204 studies and samples found a small correlation between psychosis and violence. See Kevin S. Douglas, Laura S. Guy & Stephen D. Hart, Psychosis as a Risk Factor for Violence to Others: A Meta-Analysis, 135 PSYCHOL. BULL. 679, 688 ( 2009 ) (discussed in Skeem, Manchak & Peterson, supra note 15, at 117). The study authors found no meaningful correlation, however, between psychosis and violence for offenders with mental illness or for general offenders. See Douglas, Guy & Hart, supra, at 688. Other studies have found a more robust correlation. See Jeffrey W. Swanson et al., Alternative Pathways to Violence in Persons with Schizophrenia: The Role of Childhood Antisocial Behavior Problems, 32 LAW & HUM. BEHAV. 228, 235, 237 (2008) (finding a relationship between positive psychotic symptoms, such as persecutory ideation, and serious violence in schizophrenic patients not also manifesting childhood conduct problems); Bruce G. Link, Howard Andrews & Francis T. Cullen, The Violent and Illegal Behavior of Mental Patients Reconsidered, 57 AM. SOC. REV. 275, 286–88 (1992) (finding higher rates of violence—measured by arrests and self-reports—in a sample of mental patients than in residents who had never received psychiatric treatment, after controlling for socio-demographic and community context variables, and finding that this association was partially accounted for by the presence of current psychotic symptoms); see also Junginger et al., supra note 246, at 881 (highlighting a small proportion of offenders whose violent criminal acts appeared directly or indirectly related to delusions). But see Paul Appelbaum, Pamela Clark Robbins & John Monahan, Violence and Delusions: Data from the MacArthur Violence Risk Assessment Study, 157 AM. J. PSYCHIATRY 566, 571 (2000) (finding that delusions are not associated with a higher risk of violent behavior). For a recent summary of the literature examining the relationship between psychotic symptoms and violence, see Kevin S. Douglas & Jennifer L. Skeem, Violence Risk Assessment: Getting Specific About Being Dynamic, 11 PSYCHOL. PUB. POL’Y & L. 347, 362 (2005). 258. The MacArthur Violence Risk Assessment Study, perhaps the most authoritative analysis of the relationship between violence and mental illness, found the prevalence of violence of patients discharged from acute psychiatric inpatient facilities, so long as they did not exhibit symptoms of substance abuse, was statistically indistinguishable from that of non-substance-abusing residents in the same neighborhoods. See Steadman et al., Violence by People Discharged, supra note 254, at 400. However, among those individuals who reported symptoms of substance abuse, patients were more likely to be violent than their substance-abusing neighbors. Id. For a more recent discussion on the relationship of mental illness, substance abuse, and violence, see Mulvey & Fardella, supra note 256, This caveat is not trivial: individuals with mental illnesses disproportionately abuse alcohol and drugs,259 perhaps as a way to manage their symptoms. A substantial body of evidence establishes, however, that any independent contribution made by mental illness to violence pales in comparison to risk factors shared by the general population such as sex, age, and educational achievement.260 Research on mental illness and violence suggests that, consistent with Professors Skeem’s and Fisher’s analyses,261 mental illness may play a direct role in the criminality of a minority of individuals, particularly those experiencing positive psychotic symptoms or engaging in substance abuse. If this relationship holds, treating the mental illnesses (and any cooccurring substance abuse) of these individuals may be effective in reducing recidivism.262 However, mental health courts are largely beyond the reach of individuals with mental illnesses who commit violent acts. Most mental health courts exclude persons with a history of violence or who are otherwise determined to be a public safety threat.263 So, while mental illness may be a causal factor for some violent crimes, mental health courts are unlikely to provide treatment in those situations. More recently, psychologists and other social scientists have looked beyond violence to explore the relationship between mental illness and crime.264 This area of research is challenging for a number of reasons.265 at 50 (“New research . . . suggests that individuals who have less serious forms of mental illness but who engage in substance abuse have the highest risk for violence among the mentally ill. People with more severe mental disorders but no substance abuse problems, however, are no more likely to be violent than their ‘normal’ neighbors.”). 259. See Steadman et al., Violence by People Discharged, supra note 254, at 400; E. Fuller Torrey et al., The MacArthur Violence Risk Assessment Study Revisited: Two Views Ten Years After Its Initial Publication, 59 PSYCHIATRIC SERVICES 147, 149 (2008) (“Mental disorder has a significant effect on violence by increasing people’s susceptibility to substance abuse.”). 260. See, e.g., Link & Stueve, supra note 52, at 179; Link, Andrews & Cullen, supra note 257, at 290; Skeem, Manchak & Peterson, supra note 15, at 116–17. 261. See supra notes 222–33. 262. See Skeem, Manchak & Peterson, supra note 15, at 119. 263. See Redlich et al., Second Generation, supra note 4, at 534 (observing that newer mental health courts may be more tolerant of violent offenders but still consider public safety in a “‘totality of the circumstances’ approach”); Nancy Wolff, Courting the Court, supra note 139, at 166 (“Mental health courts as they are currently formulated accept only the good risks. Cases are limited to those where the crimes are minor and the risk of violence minimal. This selection rule is . . . driven strictly by political exigencies. . . . Mental health court judges know that if someone under supervision commits a violent crime, their court will be closed down.”); id. at 167 (noting that “[m]ental health courts avoid cases [involving] previous charges of violence”). In addition, the insanity defense may be applicable to the subset of offenders whose actions were the product of delusions. See id. at 175. 264. These researchers, building off of seminal work by D.A. Andrews and James Bonta, include Jennifer L. Skeem, William H. Fisher, Jeffrey Draine, and Nancy Wolff. 265. For a discussion of the difficulties inherent in elucidating the relationship between mental illness and criminal activity, see Desai, supra note 255, at 101. First, individuals with mental illnesses commit a wide array of crimes. Contrary to the stereotype underlying the criminalization theory of an offender with mental illness as a petty misdemeanant,266 individuals with mental illnesses commit misdemeanors, felonies, and violent felonies.267 Indeed, a recent study of the offending patterns of 13,816 individuals with severe mental illnesses over a ten-year period found that such individuals were arrested for serious violent crimes, such as nonnegligent homicide or aggravated battery, nearly as often as for crimes against the public order.268 Mental health courts, reflecting this reality, are increasingly expansive in the criminal acts they allow,269 making it harder to make criminal activity of eligible meaningful generalizations about the offenders. Other complexities exist as well. For instance, the contribution of mental illness to an individual’s likelihood of reoffending, as with violence, will vary with the type of mental illness that he has and the ebb and flow of his symptoms. In addition, a number of variables may modify or confound the effect of mental illness on criminal activity, such as history of trauma, poverty, antisocial cognitions, or substance abuse.270 These variables may exist independent of an individual’s mental illness or may be a partial product of his illness. Finally, as proponents of criminalization have observed, individuals with mental illnesses may be arrested at a higher rate than non-ill individuals who behave in a similar 266. See Fisher et al., supra note 222, at 42 (recognizing a “criminalization stereotype” of offenders with mental illnesses as committing low-level misdemeanors as a result of receiving inadequate mental health services); Lynette Feder, A Comparison of the Community Adjustment of Mentally Ill Offenders with Those from the General Prison Population: An 18-Month Followup, 15(5) LAW & HUM. BEHAV. 477, 487 (1991) (“[S]ome researchers have argued that deinstitutionalization had led to the criminalization of the mentally ill. This leads to the implicit assumption that this group will be comprised of less serious offenders than those found in the general prison population.”). 267. See William H. Fisher et al., Categorizing Temporal Patterns of Arrest in a Cohort of Adults with Serious Mental Illness, 37 J. BEHAV. HEALTH SERVICES & RES. 477 (2010); William H. Fisher et al., Patterns and Prevalence of Arrest in a Statewide Cohort of Mental Health Care Consumers, 57 PSYCHIATRIC SERVICES 1623, 1625 (2006) (Table 2). 268. See Fisher et al., Patterns and Prevalence, supra note 267, at 1625 (Table 2). Specifically, 16.1 percent of cohort members were charged with crimes against public order, defined as “[b]eing a disorderly person, disturbing the peace, setting a false alarm, instigating a bomb hoax, trespassing, and consuming alcohol in a public place in violation of [an] open-container law.” Id. at 1625–26. On the other hand, 13.6 percent of cohort members were charged with serious violence against persons, defined to include “[m]urder; nonnegligent manslaughter; forcible rape; robbery (including armed robbery); aggravated assault and battery with a dangerous weapon, against a person over age 65, against a disabled person, and to collect a debt.” Id. In the aggregate, 27.9 percent of cohort members were charged with any offense over the ten-year period. Id. at 1625 (Table 2). 269. See ALMQUIST & DODD, supra note 4, at 7–9. 270. See Desai, supra note 255, at 101. manner, either because they are targeted by law enforcement271 or because they have a decreased ability to avoid detection.272 In summary, the likelihood that mental illness may contribute to an individual’s recidivism may depend upon the nature of his crimes, his diagnosis, the course of his symptoms, his characteristics and circumstances, and the degree to which law enforcement selectively targets individuals with mental illnesses in his community. Despite these complexities, a growing body of evidence suggests that the types of mental illnesses targeted by many mental health courts— severe mental illness or Axis I disorders273—are insignificant predictors of criminal behavior for most offenders. A landmark 1998 meta-analysis conducted by James Bonta, Professor Moira Law, and Karl Hanson found that the effect of clinical variables—such as diagnosis, intellectual dysfunction, and treatment history274—on recidivism275 was largely insignificant and paled in comparison to dozens of other factors.276 The meta-analysis of fifty-eight studies dated between 1959 and 1995 revealed that intellectual dysfunction, diagnosis of a mood disorder, and treatment history were nonsignificant variables, while psychosis and schizophrenia were negatively related to recidivism.277 The study’s authors concluded that many of the clinical factors emphasized within the mental health community “have little relevance to the assessment of long-term risk for recidivism.”278 Subsequent studies have confirmed the negligible role that major mental illness seems to play in recidivism.279 271. See Mark R. Pogrebin & Eric D. Poole, Deinstitutionalization and Increased Arrest Rates Among the Mentally Disordered, 15 J. PSYCHIATRY & L. 117, 118–19 (1987); Linda Teplin, Criminalizing Mental Disorder: The Comparative Arrest Rate of the Mentally Ill, 39 AM. PSYCHOLOGIST 794, 798 (1984) (presenting data from 1,382 police-citizen encounters to show law enforcement’s response to individuals with mental illnesses). 272. See Desai, supra note 255, at 101. 273. See supra notes 190–91 and accompanying text. 274. James Bonta, Moira Law & Karl Hanson, The Prediction of Criminal and Violent Recidivism Among Mentally Disordered Offenders: A Meta-Analysis, 123 PSYCHOL. BULL. 123, 125 (1998). 275. Recidivism was defined as including “any evidence of a new criminal offense” (like an arrest or conviction), “including a recommitment to a psychiatric hospital because of law-breaking behavior.” Id. at 125–26. 276. See id. at 127–28 (general recidivism); id. at 132 (violent recidivism). 277. Id. at 128, 132, 136. These researchers found that major mental disorder was at least unrelated to violent and nonviolent recidivism and, in some cases, may have even been negatively associated with reoffending. See id. at 135, 136, 139. 278. Id. at 135; see also id. at 137 (“Clinical variables and clinical judgments contribute minimally in the prediction of recidivism.”). 279. See Feder, supra note 266, at 485–86, 488 (finding, in a study of the postprison adjustment patterns of 147 offenders with mental illnesses and 400 non-ill offenders, that psychiatric variables (number of criminal hospitalizations, number of civil hospitalizations, age at first hospitalization) were not significant in predicting recidivism among offenders with mental illnesses); Paul Gendreau, Tracy One type of mental disorder that would not satisfy the eligibility criteria of most mental health courts280—antisocial personality disorder— Little & Claire Goggin, A Meta-Analysis of the Predictors of Adult Offender Recidivism: What Works!, 34 CRIMINOLOGY 575, 589 (1996) (finding, in a meta-analysis of 131 studies with 1,141 effect sizes, that psychiatric symptomology did not correlate with recidivism); see also Kevin M. Cremin et al., Ensuring a Fair Hearing for Litigants with Mental Illnesses: The Law and Psychology of Capacity, Admissibility, and Credibility Assessments in Civil Proceedings, 17 J.L. & POL’Y 455, 481 ( 2009 ) (“[I]ndividuals having a primary psychiatric diagnosis alone (i.e., a mood, anxiety or psychotic disorder) are not more likely to exhibit psychopathic or antisocial behavior than those who have not been so diagnosed.”); Jeffrey Draine, Where is the ‘Illness’ in the Criminalization of Mental Illness?, in COMMUNITY-BASED INTERVENTIONS, supra note 139, at 16–18 (reviewing relevant literature and concluding that, although representing a limited empirical base, studies to date do not demonstrate that mental illness plays an important role in reoffending); Wolff, Courting the Court, supra note 139, at 156 (“The preponderance of evidence shows that there is no reliable or predictive connection between mental illness and crime.”). 280. See ALMQUIST & DODD, supra note 4, at 11 (stating that most mental health courts require a diagnosis of an Axis I disorder, but many also accept individuals who have a co-occurring Axis II disorder); Lurigio & Snowden, supra note 12, at 205 (reporting that only 3 percent of mental health courts in a national survey allowed defendants with an Axis II diagnosis to participate). There are many good reasons to support mental health courts’ decision not to allow a primary diagnosis of antisocial personality disorder to establish eligibility. First, criminal law generally does not recognize antisocial personality disorder as reducing culpability. See, e.g., Bruce J. Winick, The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier, 50 B.C. L. REV. 785, 843 ( 2009 ) (“Those diagnosed with [antisocial personality disorder] or psychopathy ‘may have problems fully appreciating the emotional meaning or consequences of their actions and using their emotions to make choices and plans,’ but the law considers that ‘they ought to know better than to commit serious crime and violence.’ Those with this diagnosis who commit heinous murders thus are worthy of retribution, and their conduct is sufficiently voluntary that it is subject to deterrence.” (quoting Stephen D. Hart, Psychopathy, Culpability, and Commitment, in MENTAL DISORDER AND CRIMINAL LAW 159, 169 (Robert F. Schopp et al. eds., 2009)); Stephen J. Morse, Culpability and Control, 142 U. PA. L. REV. 1587, 1637 (1994) (commenting on the complex challenge psychopaths present for issues of culpability, observing that a “psychopath knows what he is up to, what the rules are, and what will happen to him if he is caught for breaking them,” id. at 1636, and seeming to indicate that the proper moral response is to hold psychopaths responsible for their behavior); see also MODEL PENAL CODE § 4.01(2) (arguably precluding psychopaths from pleading the insanity defense by stating that “the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct”). Indeed, some of the most heinous criminals likely carry this diagnosis. See Winick, The Supreme Court’s Evolving Death Penalty Jurisprudence, supra, at 840–41 (observing that Ted Bundy, Adolf Hitler, and Saddam Hussein probably had antisocial personality disorder); see also Grant T. Harris, Tracey A. Skilling & Marnie E. Rice, The Construct of Psychopathy, 28 CRIME & JUST. 197, 198 (2001) (“[M]any of the most serious and persistent offenders would be identified as psychopathic.”). Second, allowing a primary diagnosis of antisocial personality disorder to establish eligibility for diversion to a mental health court would eliminate a key limiting function of the mental illness eligibility criterion. Some studies have found that over half—and perhaps as many as 90 percent of incarcerated criminals— could carry this diagnosis. See Paul Moran, The Epidemiology of Antisocial Personality Disorder, 34 SOC. PSYCHIATRY & PSYCHIATRIC EPIDEMIOLOGY 231, 234 (1999) (“[A]ntisocial personality disorder is extremely common in prisons with prevalence rates as high as 40–60% among the male sentenced population.”); Jennifer L. Skeem, John Monahan & Edward P. Mulvey, Psychopathy, Treatment Involvement, and Subsequent Violence Among Civil Psychiatric Patients, 26 LAW & HUM. BEHAV. 577, 578 (2002) (indicating that up to 90 percent of offenders likely qualify for an antisocial personality disorder diagnosis). Finally, some evidence suggests that antisocial personality disorder may be less amenable to treatment than Axis I disorders such as schizophrenia, bipolar disorder, or likely contributes to recidivism.281 Antisocial personality disorder is an Axis II disorder whose symptoms are behavioral rather than associated with cognitive impairment.282 This personality disorder is defined in the Diagnostic and Statistical Manual of Mental Disorders as “a pervasive pattern of disregard for, and violation of, the rights of others.”283 Studies indicate that a diagnosis of antisocial personality disorder correlates with violence and criminal activity.284 Reflecting the fact that one criterion of the disorder is that individuals “fail to conform to social norms with respect to lawful behaviors” as indicated by “repeatedly perform[ing] acts that are ground for arrest,”285 some research has suggested that the predictive power of a diagnosis of antisocial personality disorder for recidivism is fully mediated by an individual’s past antisocial or criminal acts as well as by socio-demographic risk factors.286 The weight of recent research, however, demonstrates that behavioral traits associated with antisocial personality disorder are indicators of risk.287 Along these lines, Bonta and Professor D.A. Andrews have identified major mental disorder as a “minor” risk factor288 but posit that its predictive validity is mediated by the general risk factors of antisocial cognition and antisocial personality pattern, as well as substance abuse.289 Indeed, antisocial cognition and behavior are highly correlated with recidivism for both mentally disordered and nondisordered offenders. Bonta and Andrews, drawing upon social psychological models of criminality and social learning theory,290 have codified an influential list of major criminogenic need factors—dynamic risk factors that, when changed, are associated with changes in recidivism291—coined the “Big Four” and “Central Eight.”292 These factors appear to affect recidivism among disordered and nondisordered offenders alike.293 The Big Four risk/need factors, which have the greatest ability to predict criminal behavior,294 include a history of antisocial behavior, antisocial personality pattern, antisocial cognition,295 and antisocial attitudes296—all aspects of antisocial personality disorder. These variables involve poor socialization, restless energy, risk-taking, impulsivity, egocentrism, poor problemsolving skills, hostility, and a disregard for responsibilities and others.297 The four additional risk/need factors that comprise the Central Eight, which are moderately correlated with recidivism, include family and/or marital problems, low levels of social and/or work performance, low levels of involvement and satisfaction in anticriminal leisure pursuits, and substance abuse.298 Subsequent studies, including large-scale metaanalyses, have confirmed the importance of criminogenic risk factors in predicting recidivism.299 While major mental illness may not be a causal factor in the criminal behavior of most offenders with mental illnesses, mental illness may play an indirect role in generating socio-demographic conditions linked with criminal activity.300 Mental illness may contribute, for instance, to a loss of employment, movement into disadvantaged neighborhoods, gain of antisocial acquaintances, and loss of prosocial support—all criminogenic risk factors that heighten risk of criminality.301 Offenders with mental illnesses are also more prone to homelessness and substance abuse, two factors highly correlated with recidivism.302 Evidence suggests that individuals with mental illnesses may also enjoy fewer social supports than non-ill individuals.303 Indeed, some research suggests that offenders with mental illnesses may enter the criminal justice system with a higher concentration of criminogenic risk factors, on average, than non-ill offenders.304 Consistent with research showing that mental illness is not a dynamic risk factor for reoffending, evidence shows that the provision of mental health treatment alone is not an effective strategy for reducing the recidivism of offenders with mental illnesses.305 Studies have found that 300. See Draine et al., supra note 218 (arguing that poverty moderates the relationship between serious mental illness and criminal behavior). 301. See Fisher et al., Community Mental Health Services, supra note 222, at 38 (“[A] conceptual model . . . would see severe mental illness as generating a set of social and economic statuses which in turn place individuals with those illnesses at risk for criminal justice involvement. Indeed, they experience the same kind of risk encountered by others of similar socioeconomic status who do not have serious mental illness.”). 302. See SCHNEIDER ET AL., supra note 36, at 57; Jeffrey Draine, Mental or Criminal?, 356 LANCET s48 (2000); see also Fred C. Osher & Henry J. Steadman, Adapting Evidence-Based Practices for Persons with Mental Illness Involved with the Criminal Justice System, 58 PSYCHIATRIC SERVICES 1472, 1473 (2007) (“In jails 30.3% of inmates with mental illnesses were homeless in the year before arrest, compared with 17.3% of other inmates. Not having a home upon release from jail or prison also increases the risk of rearrest.”). 303. See Feder, supra note 266, at 483 (“Regardless of whether the [mentally ill offenders] were released from the prison or from the hospital, they were significantly less likely . . . to receive support from family or friends upon release into the community (56% vs. 80% for those in the general prison population.”)). 304. See Draine, Mental or Criminal?, supra note 302; Skeem, Manchak & Peterson, supra note 15, at 117 (discussing studies and suggesting that “offenders [with mental illnesses] are at risk not because they are mentally ill, but because they disproportionately experience key factors (e.g., antisocial pattern) that proponents [of the social/personality theory] believe establish and maintain ongoing criminal activity”). William H. Fisher, Eric Silver, and Nancy Wolff have identified some of the ways in which offenders with mental illnesses might develop a greater constellation of criminogenic risk factors than nondisordered individuals. See Fisher, Silver & Wolff, supra note 126, at 551–54; see also Fisher et al., Community Mental Health Services, supra note 222, at 38–41 (exploring the role of poverty and social environments as risk factors for criminal justice involvement among persons with mental illness). 305. See Morgan et al., supra note 295, at 334 (“Intensive, targeted treatment and service delivery approaches have not proven to be sufficiently preventive, nor has psychiatric treatment by itself.”); Fisher et al., Community Mental Health Services, supra note 222, at 37 (discussing a series of findings suggesting “that ‘generic’ community mental health services of the kind provided to persons with severe mental illness, while providing important treatment and support services, may not in and of themselves reduce the risk of criminal justice involvement or re-involvement for some individuals in providing intensive mental health services, and not addressing broader criminogenic needs, does not reduce rates of criminal behavior for individuals with mental illnesses.306 Even evidence-based mental health services—those proven to have a reliable effect on clinical outcomes— have not reduced recidivism in programs designed to decrease the involvement of individuals with mental illnesses in the criminal justice system.307 Such findings prompted Professor Skeem and her colleagues to report that “no evidence” supports the assumption that the control or reduction of mental illness symptoms will reduce recidivism.308 Studies show that the most effective programs for reducing recidivism are those that target the specific risks and needs predictive of criminality, such as procriminal attitudes, criminal associates, and substance abuse.309 One researcher recently concluded that clear empirical evidence demonstrates that appropriate offender rehabilitation programs addressing criminogenic variables can reduce recidivism by 30 percent.310 In light of this evidence, Bonta and Andrews have issued this opinion: this population”); Skeem, Manchak & Peterson, supra note 15, at 120 (explaining that “even if mental illness contributed to downward socioeconomic drift, it is unlikely that symptom improvement will reverse poverty or associated criminogenic factors that are more socioeconomic than medical” and that “factors that originally caused criminal behavior may differ from those that maintain it”). 306. See, e.g., Robin E. Clark, Susan K. Rickets & Gregory J. McHugo, Legal System Involvement and Costs for Persons in Treatment for Severe Mental Illness and Substance Use Disorders, 50(5) PSYCHIATRIC SERVICES 641, 644 (1999) (finding that arrest rates of participants in assertive community treatment and those in standard case management did not differ significantly); Jennifer L. Skeem & Jennifer Eno Louden, Toward Evidence-Based Practice for Probationers and Parolees Mandated to Mental Health Treatment, 57 PSYCHIATRIC SERVICES 333, 339 (2006) (finding, in an evaluation of a probation program and jail diversion programs, that increased access to and use of mental health services did not lead to a significant decrease in recidivism); Phyllis Solomon, Jeffrey Draine & Arthur Meyerson, Jail Recidivism and Receipt of Community Mental Health Services, 45 HOSP. & COMMUNITY PSYCHIATRY 793, 795 (1994) (finding that “a greater proportion of the clients assigned to receive intensive case management services from the [assertive community treatment] team returned to jail compared with clients assigned to individual case managers or referred to a [community mental health center]”). 307. Skeem, Manchak & Peterson, supra note 15, at 114. 308. Id. According to these researchers, existing data show that “offenders who (for whatever reason) show symptom improvement during a treatment program are no less likely to recidivate than those whose symptoms remain unchanged or worsen.” (emphasis added). Id. 309. See, e.g., Bonta, Law & Hanson, supra note 274, at 138; D.A. Andrews & James Bonta, Rehabilitating Criminal Justice Policy and Practice, 16 PSYCHOL. PUB. POL’Y & L. 39 (2010); see also Skeem, Manchak & Peterson, supra note 15, at 121 (“Specifically, the effectiveness of correctional programs in reducing recidivism is positively associated with the number of criminogenic needs they target (i.e., dynamic risk factors for crime, like procriminal attitudes), relative to noncriminogenic needs (i.e., disturbances that impinge on an individual’s functioning in society, like depression . . .). Because mental illness is not a criminogenic need for this subgroup, it is important to target stronger factors for crime.”). 310. Ferguson, Ogloff & Thomson, supra note 251, at 8. Our argument is that if [mental health] treatment services are offered with the intention of reducing recidivism, changes must be encouraged on criminogenic need factors. Offenders also have a right to the highest quality service for their other needs, but that is not the focus of correctional rehabilitation. Striving to change noncriminologic needs is unlikely to alter future recidivism significantly unless it indirectly impacts on a criminogenic need. We may make an offender feel better, which is important and valued, but this may not necessarily reduce recidivism.311 Some researchers have speculated that, when programs directed at offenders with mental illnesses (such as mental health courts) do reduce recidivism, they do so by addressing offenders’ criminogenic risks, engaging in problem-solving strategies, and targeting situational factors that get an offender in trouble.312 C. Implications The research on mental illness and crime is instructive for suggesting which populations should participate in mental health courts. First, a theory of therapeutic rehabilitation (premised on the belief that criminal behavior is symptomatic of mental illness) could justify mental health courts if the courts were limited to the small subset of offenders whose crimes actually stemmed from mental illnesses. In theory, treating the mental illnesses of these individuals should tend to decrease their likelihood of reoffending.313 Second, a more capacious understanding of rehabilitation, based in part on social learning theory,314 may justify treating a broader cohort of individuals with mental illnesses. Instead of conceptualizing crime as simply the result of symptomatic mental illness, for instance, mental health courts could operate on the premise that the criminal behavior of individuals with mental illnesses is often motivated either by mental illness or by criminogenic needs related to mental illness. This understanding would support inviting offenders with mental illnesses to participate in mental health courts, regardless of the existence of a causal 311. ANDREWS & BONTA, supra note 290, at 244; see also Silver, supra note 251, at 689 (“If mental disorder is only a small part of the problem, services aimed at its control can only be a small part of the solution.”). 312. Skeem, Manchak & Peterson, supra note 15, at 121. 313. See id. at 119–20. 314. See supra note 290. link between their criminal act and mental illness symptoms, to address their criminogenic needs as well as to provide mental health treatment. This option may hold normative appeal, since individuals with mental illnesses may be as blameless for the generation of their criminogenic needs as for their illnesses.315 Third, an even more capacious form of rehabilitation, conceptualizing crime as the product of criminogenic risks and needs, would support the creation of a newly constituted specialty court system devoted to addressing the dynamic risk factors of all high-risk offenders, mentally ill or not. Directing services to those offenders most at risk for recidivism is a central principle of effective correctional treatment.316 As Andrews and his colleagues have explained, “the effects of treatment typically are . . . greater among higher risk cases than among lower risk cases.”317 Reserving intensive and extensive service for high-risk offenders should yield the greatest dividend in crime reduction.318 Fourth, by broadening the stated goals of mental health courts beyond decreasing arrests or incidents of reconviction—which some mental health courts do319—a theory of rehabilitation could potentially justify mental 315. As explained above, mental illness often leads to the generation of socio-demographic conditions linked with criminal activity, such as homelessness, unemployment, gain of antisocial acquaintances, and loss of prosocial support. See supra notes 225–27, 301–03. But the criminogenic risk factors of many, if not most, non-ill offenders also originate from sources beyond their control. See Lurigio & Snowden, supra note 12, at 197 (“[Persons with serious mental illness] often reside in highly criminogenic and impoverished environments that exert pressures on them to engage in criminal behaviors. The factors that characterize these environments (e.g., joblessness, gang influences, failed educational systems, and residential instability) also affect poor persons with no serious mental illness.”); John Monahan, The Psychiatrization of Criminal Behavior: A Reply, 24 HOSP. & COMMUNITY PSYCHIATRY 105, 107 (1973) (observing that “being born in a ghetto is more crimonogenic than being ‘mentally ill’”). It is unclear on what basis we should hold individuals with mental illnesses less responsible for their criminal acts (assuming mental illness was not a direct cause of their crimes), but not similarly excuse the acts of criminals born into poverty or subjected to pervasive discrimination. See Morse, supra note 216, at 627 (“Craziness is only a predisposing cause of other legally relevant behavior. If the law is unwilling to consider the relevance of other predisposing causes, such as poverty, to legal questions such as dangerousness or criminal responsibility, it is difficult to maintain a compelling argument that craziness is different and therefore should be relevant.”). 316. See Dowden & Andrews, supra note 299, at 451 (outlining three principles of effective correctional treatment); Skeem, Manchak & Peterson, supra note 15, at 122. 317. D.A. Andrews et al., Does Correctional Treatment Work? A Clinically Relevant and Psychologically Informed Meta-Analysis, 28 CRIMINOLOGY 369, 374 (1990). 318. For empirical support of the risk principle, see, e.g., D.A. Andrews et al., supra note 317; D.A. Andrews & Jerry J. Kiessling, Program Structure and Effective Correctional Practices: A Summary of the CaVIC Research, in EFFECTIVE CORRECTIONAL TREATMENT 439 (R.R. Ross & Paul Gendreau eds., 1980); Craig Dowden & D.A. Andrews, What Works for Female Offenders: A MetaAnalytic Review, 45 CRIME & DELINQ. 438 (1999). 319. See, e.g., N.H. Mental Health Pilot Program PURPOSE, New Hampshire Court Rules (2010), available at http://www.courts.state.nh.us/supreme/orders/20020224_mhcp.htm (identifying health courts as currently constituted. Rates of recidivism are often considered the most tangible and suitable outcome measures of rehabilitative treatment (and perhaps the most politically palatable), but other measures of social welfare—such as improvement in aspects of offenders’ psychological health, conduct, and life-style—could also serve as viable measures of success.320 Mental health courts may succeed at enhancing the human potential, psychological health, or welfare of offenders, even in the face of static re-arrest rates.321 Very little data has been collected on the extent to which the well-being of offenders is enhanced, beyond their capacity to conform to law-abiding behavior in the short-term.322 the purpose of the Keene District Court PILOT project as including improved access to mental health treatment, improved well-being of identified defendants with mental illnesses, reduced recidivism, and public safety); JMHCP Grantee (2010)—Josephine County Community Justice and Mental Health Collaboration Project, http://www.consensusproject.org/program_examples/josephine_county_ community_justice_and_mental_health_collaboration_project (last visited Jan. 8, 2012) (defining the goals of the project as “1) to improve collaboration among the adult criminal justice system, the juvenile justice system and the mental health system; 2) to better address the needs of people with mental illness; and 3) to increase public safety and promote positive outcomes for people with mental illnesses”); McHenry County, MCHENRY COUNTY MENTAL HEALTH COURT—22ND JUDICIAL CIRCUIT, http://www.co.mchenry.il.us/departments/courtadmin/Pages/MHealthCourtHome.aspx (last visited Jan. 8, 2012) (“The goals of the MHC program are to enhance public safety, reduce recidivism, improve participants’ mental health and promote self-sufficiency by offering cost effective [sic] alternatives to incarceration and hospitalization by connecting the defendants with community treatment services.”). 320. See DOUGLAS LIPTON, ROBERT MARTINSON & JUDITH WILKS, THE EFFECTIVENESS OF CORRECTIONAL TREATMENT: A SURVEY OF TREATMENT EVALUATION STUDIES 12–14 (1975) (listing a number of dependent variables used to measure the effectiveness of rehabilitation, including recidivism, vocational adjustment, educational achievement, drug and alcohol addiction abatement, personality and attitude change, and community adjustment); ROTMAN, supra note 41, at 121–22; Introduction, in A READER ON PUNISHMENT 1, 24 (R.A. Duff & David Garland eds., 1994); id. (“We need to ask not just ‘what works’ to bring about for instance a reduction in the frequency of future offending, but also what we should count as ‘working’. Should the penal system be concerned only with reducing future offending, or also with other kinds of improvement in offenders’ conduct and circumstances? Should attention focus on individual offenders, and the attempt to change their behavior; or should more attention be paid to the social and economic circumstances which encourage crime, and upon which remedial efforts are too rarely focused?”); see also Interview with Stephen V. Manley, Judge, Mental Health Treatment Court, Santa Clara Cnty., Cal., Ctr. for Court Innovation (Jan. 2005), available at http://www.courtinnovation.org/research/stephen-v-manley-judge-adultcriminal-drug-court-mental-health-treatment-court-and-family-d?url=research%2F39%2Finterview& mode=39&type=interview (“Success is small things: clients who are able to function, who learn how to take the bus, who learn to find a place to live that is somewhat permanent, who are able to get social security or their disability reinstated. I have different expectations and goals for every group of clients.”). 321. See ROTMAN, supra note 41, at 122 (“Enhancing the human potentialities of the offender is a specific feature of rehabilitative action, which is independent of its ultimately measurable outcome.”). 322. For a summary of evidence collected to date on measures of treatment compliance and improved mental health, see ALMQUIST & DODD, supra note 4, at 25. Finally, theories unrelated to rehabilitation might justify mental health courts. For instance, one could extrapolate from the Supreme Court’s 1997 decision of Kansas v. Hendricks323 an argument that a separate system of justice is warranted for offenders with mental illnesses because of their diminished ability to control their behavior.324 Alternatively, one could argue that mental health courts serve as a means to eliminate the incidental suffering that offenders with mental illnesses experience when incarcerated,325 and that the elimination of that suffering is mandated by theories of proportionate punishment.326 In addition, it is possible (though perhaps unlikely) that mental health courts could have specific or general deterrent effects and could be supported by a theory of deterrence.327 The viability of many of these theories, like the narrow form of therapeutic rehabilitation embraced by mental health courts, depends on the actual functioning and effect of mental health courts. Currently, very little data exists on the extent to which mental health courts are effective and why. To this end, I join the chorus of governmental bodies and commentators urging the collection of data on the extent to which mental health courts are successful in reducing recidivism and improving the psychological health and well-being of participants, as well as data on the eligibility requirements, procedures, and options of assistance offered by courts around the country.328 Data is essential both to assess the practical 323. 521 U.S. 346 (1997). 324. Cf. Christopher Slobogin & Mark R. Fondacaro, Juvenile Justice: The Fourth Option, 95 IOWA L. REV. 1 ( 2009 ) (arguing that Hendricks provides a basis for juvenile courts aimed at preventing criminal behavior). I am grateful to Professor Christopher Slobogin for sharing this insight. 325. See, e.g., Nancy Wolff & Jing Shi, Victimization and Feelings of Safety Among Male and Female Inmates with Behavioural Health Problems, 20(1) J. FORENSIC PSYCHIATRY & PSYCHOL., Supplement 1, S56 ( 2009 ); Nancy Wolff, Cynthia Blitz & Jing Shi, Rates of Sexual Victimization in Prison for Inmates with and Without Mental Disorders, 58(8) PSYCHIATRIC SERVICES 1087 (2007); HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS ( 2003 ), http://www.hrw.org/reports/2003/usa1003/. 326. See John Bronsteen, Christopher Buccafusco & Jonathan Masur, Happiness and Punishment, 76 U. CHI. L. REV. 1037 ( 2009 ) (arguing that sentencing decisions should take into account findings about human adaptability to punishment to achieve actual proportionality in punishment severity); E. Lea Johnston, Mental Illness, Suffering, and the Distribution of Deserved Punishment (draft on file with author); Adam J. Kolber, The Comparative Nature of Punishment, 89 B.U. L. REV. 1565 ( 2009 ) (arguing that the severity of punishment should be measured by deviance from subjects’ baseline states); Adam J. Kolber, The Subjective Experience of Punishment, 109 COLUM. L. REV. 182 ( 2009 ) (arguing that a successful justification of punishment must take into account offenders’ subjective experiences and that judges should consider actual or anticipated punishment experience at sentencing). But see David Gray, Punishment as Suffering, 63 VAND. L. REV. 1619 (2010) (responding to these arguments); Dan Markel & Chad Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, 98 CALIF. L. REV. 907 (2010) (same). 327. See supra notes 141–46 and accompanying text. Whether mental health courts deter crime is an open empirical question. 328. See, e.g., ALMQUIST & DODD, supra note 4, at 21, 29; Lurigio & Snowden, supra note 12, at CONCLUSION The decision to create a separate system of justice for a historically stigmatized population should be justified by a coherent and compelling theory of punishment or social welfare. This Article examines the efficacy of the two theories proposed by mental health court advocates— therapeutic jurisprudence and a narrow form of therapeutic rehabilitation—and finds neither adequate to justify mental health courts as currently constituted. Therapeutic jurisprudence cannot justify the existence of mental health courts because, by definition, it is unable to resolve normative conflict. Therapeutic rehabilitation, on the other hand, fails to provide a coherent theory to support mental health courts because empirical evidence belies its central assumptions about the predictive link between mental illness and criminal behavior. While this Article contends that the two theories identified by mental health court advocates are inadequate to justify the current incarnation of mental health courts, other theories may fill the void. Some theories may justify the courts as they currently exist; others may support the diversion and treatment of a limited cohort of offenders with mental illnesses; still others may support treating a broader population if the purported ends of the courts were broadened beyond decreasing specific recidivism of offenders with mental illnesses. The viability of each of these theories depends on empirical data on the effect and workings of mental health courts. These courts potentially hold great promise, but more analysis is needed to examine whether a coherent and compelling theory can be offered to justify their existence. 213–14; Erickson et al., supra note 10, at 342 (“Further studies would elucidate the similarities and differences among these courts, assess the efficacy of different approaches, and allow for more broadbased conclusions regarding the benefits and areas of concern that mental health courts bring to the community.”). INTRODUCTION........................................................................................ 520 I. THERAPEUTIC JURISPRUDENCE............................................................ 529 A. Normative Content of Therapeutic Jurisprudence .................. 532 B. Normative Conflict Between Mental Health Courts and the Traditional Criminal Justice System ....................................... 535 1 . Ignoring Proportionality and Just Deserts...................... 537 2. Portraying Offenders as Lacking Autonomy and Moral Agency ............................................................................. 539 3 . Trivializing Underlying Criminal Acts............................ 543 4 . Incentivizing Individuals to Commit Crimes to Obtain Scarce Resources............................................................. 545 II. THERAPEUTIC REHABILITATION......................................................... 547 A. Definition................................................................................. 547 B. Central Factual Assumptions .................................................. 551 1. Assumption that Mental Illness Contributed to Predicate Offense ............................................................ 552 a. Eligibility Requirements of Mental Health Courts .. 553 b. The Varying Motivations for Crime of Individuals with Mental Illnesses ............................................... 558 2. Assumption that Symptomatic Mental Illness Directly Contributes to Recidivism................................................ 561 a. Trivial Role of Mental Illness in Recidivism............ 564 C. Implications............................................................................. 575 CONCLUSION ........................................................................................... 579 24 . See Erickson et al., supra note 10 , at 339; Faraci, supra note 21, at 846-47; Lurigio & Snowden , supra note 12, at 206; K. Stafford & R. Wygant , The Role of Competency to Stand Trial in Mental Health Courts , 23 BEHAV. SCI. & L. 245 ( 2005 ). 25 . See Bernstein & Seltzer, supra note 23, at 159 . 26. See id. at 156- 57 ; John A. Bozza, Benevolent Behavior Modification: Understanding the Nature and Limitations of Problem-Solving Courts, 17 WIDENER L .J. 97 , 113 - 14 ( 2007 ); Casey, supra note 21, at 1491-93 , 1497 - 1500 ; Faraci, supra note 21, at 838-43; Wolff & Pogorzelski, supra note 13, at 556 , 558 - 59 . 27 . See Erickson et al., supra note 10 , at 341; Faraci, supra note 21, at 848; Lurigio & Snowden, supra note 12 , at 212; Seltzer, supra note 22, at 581 . 28. The focus of this Article is on the extent to which a theory of social risk or punishment mental health treatment in jails and prisons. 29. Utilitarian theories of punishment hold that an infliction of punishment is justified as a means in PUNISHMENT AND REHABILITATION, supra note 19 , at 64 , 66 - 68 & n.2. Utilitarian theories or Pluralism, in RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY (Mark D . White ed., 2011 ) (briefly REHABILITATION , supra note 19, at 18 , 22 - 23 (“ By reforming the criminal, by deterring him or others argues) the intrinsic evil of suffering deliberately inflicted . ”) . 30 . According to Professor Michael T. Cahill, rehabilitation “aims to transform those who were formerly motivated to commit crimes into law-abiding citizens . ” Cahill, supra note 29 , at 8. pathologies that can be diagnosed and ameliorated through treatment . See infra notes 41-44 . While they commit a crime . See Cahill, supra note 29, at 8. 31. See infra notes 54-55 . 32 . See THERAPEUTIC JURISPRUDENCE (David B . Wexler ed., 1990 ); ESSAYS IN THERAPEUTIC JURISPRUDENCE (David B. Wexler & Bruce J. Winick eds., 1991 ). 46 . See , e.g., Stephen J. Morse , Crazy Reasons, 10 J. CONTEMP. LEGAL ISSUES 189 , 210 , 211 , 216 ( 1999 ); Stephen J . Morse , Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law , 51 S. CAL. L. REV . 527 , 564 - 90 ( 1978 ). 47. See infra notes 217-30 and accompanying text. 48. See infra notes 201-13 and accompanying text. 49. See infra notes 274-79 and accompanying text. 50. See infra notes 291-99 and accompanying text. 51 . See , e.g., OTTO F. WAHL, MEDIA MADNESS : PUBLIC IMAGES OF MENTAL ILLNESS ( 1995 ); George Gerbner et al., Health and Medicine on Television, 305 NEW ENG. J. MED . 901 ( 1981 ); John and Cultural Perspective , 20 BULL. AM. ACAD. PSYCHIATRY L . 191 , 192 ( 1992 ) (describing results of Illness on Television, 33 J. BROADCASTING & ELECTRONIC MEDIA 325 ( 1989 ). 52 . See , e.g., Andrew B. Borinstein , Public Attitudes Toward Persons with Mental Illness , 11 HEALTH AFFS . 186 ( 1993 ) (reporting results from a 1989 Robert Wood Johnson Foundation Program on Chronic Mental Illness study finding that 15 to 24 percent of respondents were concerned about the Therapeutic Jurisprudence Filter: Fear and Pretextuality in Mental Disability Law , 10 N. Y.L. SCH . J. HUM. RTS . 805 , 808 ( 1993 ) (“[W]e often presume that all mentally disabled individuals are dangerous 61. See Mae C. Quinn , An RSVP to Professor Wexler's Warm Therapeutic Jurisprudence 48 B.C. L. REV . 539 , 547 - 50 ( 2007 ) [hereinafter RSVP] (outlining criticisms of therapeutic Winick) . 62 . Wexler , Reflections on the Scope of Therapeutic Jurisprudence, supra note 57 , at 221 . 63. Winick , The Jurisprudence of Therapeutic Jurisprudence, supra note 34 , at 194; see also Wexler , Reflections on the Scope of Therapeutic Jurisprudence, supra note 57 , at 223 (suggesting that recognizing that even this is (and should remain) very rough around the edges . ”) . 64 . See Wexler , Reflections on the Scope of Therapeutic Jurisprudence, supra note 57, at 222 long-term, or both?”); Winick, The Jurisprudence of Therapeutic Jurisprudence , supra note 34 , at 195 . 65. See Slobogin, supra note 33 , at 204 , 206 - 07 ( describing how two scholars analyzing the conclusions based, apparently, on their different experiences, training , and education) . 66. See supra notes 10-16 . 217 . See DAN A. LEWIS ET AL., WORLDS OF THE MENTALLY ILL 118-19 ( 1991 ); Wolff, Courts as Therapeutic Agents , supra note 20 , at 432 (“ Different factors motivate such persons to engage in criminal behavior, and only one of these factors is untreated mental illness . ”) . 218 . See LEWIS ET AL., supra note 217 , at 118-19; Wolff, Courts as Therapeutic Agents, supra note 20, at 432; see also J. Draine et al., Role of Social Disadvantage in Crime , Joblessness, and Homelessness Among Persons with Serious Mental Illness, 53 PSYCHIATRIC SERVICES 565 , 565 - 67 ( 2003 ) (observing that persons with mental illness may engage in offending because they are poor , not because they have a mental illness) . 219 . See LEWIS ET AL., supra note 217 , at 118-19; Wolff, Courts as Therapeutic Agents, supra note 20, at 432 . 220. Leonard I. Stein & Ronald J. Diamond , The Chronic Mentally Ill and the Criminal Justice System: When to Call the Police, 36 HOSP . & COMMUNITY PSYCHIATRY 271 , 272 ( 1985 ). 221 . See Virginia Aldigé Hiday, Mental Illness and the Criminal Justice System , in A HANDBOOK FOR THE STUDY OF MENTAL HEALTH 508 , 524 - 25 ( Allen V. Horwitz & Teresa L. Scheid eds., 1999 ) (proposing the original taxonomy of offenders with mental illnesses) . 222 . See William H. Fisher et al., Community Mental Health Services and Criminal Justice 139, at 25 , 43 . 242. Marc F. Abramson , The Criminalization of Mentally Disordered Behavior: Possible Side- Effect of a New Mental Health Law , 23 HOSP. & COMMUNITY PSYCHIATRY 101 , 103 ( 1972 ). 243. Fisher, Silver & Wolff, supra note 126, at 546 . 244. See Abramson, supra note 242 , at 103 . 245. See Fisher, Silver & Wolff, supra note 126, at 546 (“ Mentally ill offenders are often arrested VIOLENT , LOW-LEVEL OFFENDER 2 ( 1996 ))); Carole Morgan, Developing Mental Health Services for Local Jails, 8 CRIM. JUST. & BEHAV . 259 , 261 ( 1981 ) (“A substantial number of the individuals mental health to the criminal justice system . ”) . 246 . See Bernstein & Seltzer, supra note 23, at 143 (“ For most [offenders with mental illnesses], Illness in Jails and Prisons: A Review, 49 PSYCHIATRIC SERVICES 483 , 485 ( 1998 ) (“[M]any uncared- Effects of Serious Mental Illness and Substance Abuse on Criminal Offenses , 57 PSYCHIATRIC SERVICES 879 , 879 ( 2006 ) (explaining that adherents of the criminalization theory apparently believe that “symptoms of serious mental illness motivate or otherwise cause actual criminal offenses” ). 247 . See Fisher, Silver & Wolff, supra note 126, at 546; Lamb & Weinberger, supra note 246, at 490. 248. See , e.g., Fisher, Silver & Wolff, supra note 126, at 547-48 ( marshalling evidence in support Junginger et al., supra note 246 , at 879 ( “In fact, what little empirical research exists on this particular Peterson , supra note 15, at 116 (“ There is no evidence for the basic criminalization premise that mental illness.”) . 249 . See , e.g., Keele, supra note 182 , at 194- 95 ( 2002 ); Robert D. Miller , The Continuum of Persons , 74 DENV. U. L. REV. 1169 , 1183 ( 1997 ); Marlee E. Moore & Virginia Aldigé Hiday , Mental Court and Traditional Court Participants, 30 LAW & HUM. BEHAV . 659 , 660 ( 2006 ). 250 . Wolff , Courting the Court, supra note 139 , at 155 , 163 . 251. See , e.g., A. Murray Ferguson , James R.P. Ogloff & Lindsay Thomson , Predicting Recidivism by Mentally Disordered Offenders Using the LSI-R:SV, 36 CRIM . JUST. & BEHAV. 5 , 5 ( 2009 ) (listing studies showing that individuals with major mental disorder are at an “elevated risk” for Criminological Perspective , 30 LAW & HUM . BEHAV. 685 , 685 - 86 ( 2006 ) (listing studies and when paired with substance abuse) . 252. See infra notes 274-79. 253. See infra notes 291-99 . 254 . See LEWIS ET AL., supra note 217 , at 110; Henry J. Steadman et al., Violence by People Discharged from Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhoods, 55 ARCHIVES GEN. PSYCHIATRY 393 , 393 , 401 nn.1- 2 ( 1998 ).


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E. Lea Johnston. Theorizing Mental Health Courts, Washington University Law Review, 2012,