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Behavioral Sciences and the Law Behav. Sci. Law 23: 277–293 (2005) Published online in Wiley InterScience (www.interscience.wiley.com). DOI: 10.1002/bsl.648

Integrating the Criminal Justice System into Mental Health Service Delivery: The Worcester Diversion Experience

Albert J. Grudzinskas, Jr., J.D.,*,y Jonathan C. Clayfield, M.A., L.M.H.C.,y Kristen Roy-Bujnowski, M.A.,y William H. Fisher, Ph.D.,y and the Hon. Maurice H. Richardson (Ret.), J.D.y

The substantial number of persons with mental illness encountered in many sectors of the criminal justice system has spurred actors from various agencies within that system to take actions aimed at reducing the growth of this population. These actions have included the development of specialty police units, jail diversion programs, and other mechanisms for channeling persons with mental illness out of the criminal justice system and into mental health treatment. The courts, too, have become involved in this effort with the recent development of the ‘‘mental health court,’’ the latest of the ‘‘specialty’’ or ‘‘problem solving courts.’’ These courts have not been without their critics, however, nor are they the only feasible approach to court based diversion. This paper identifies and explores a range of options for structuring the relationship between criminal courts and local mental health systems. Beginning with a discussion of the rationale motivating the development of mental health courts, two alternatives to this specialty court model are discussed. One involves judges dealing with defendants having mental illness and substance abuse on a case-by-case basis. The other takes advantages of linkages that may already exist between most courts and the mental health providers who conduct their forensic assessments, expanding the role of these providers to serve as boundary spanners between courts and the components of local mental health systems. Regardless of the model adopted, however, appropriate linkages must exist between the courts and relevant

Copyright # 2005 John Wiley & Sons, Ltd.

*Correspondence to: Albert J. Grudzinskas, Jr., Assistant Professor of Psychiatry in Law and Coordinator of Legal Studies, University of Massachusetts Medical School, Department of Psychiatry, 55 Lake Avenue North, WSH-8C-23, Worcester, MA 01655, U.S.A. E-mail: [email protected] yCenter for Mental Health Services Research, University of Massachusetts Medical School, Worcester, MA, U.S.A. providers. A case study is provided that demonstrates how the status of a locale’s linkages can be evaluated and how the information derived from such evaluation can be used to improve the linkages between police, courts, and health and human services agencies. Copyright # 2005 John Wiley & Sons, Ltd.

INTRODUCTION

Fifty years ago, Sutherland observed that ‘‘For a century or more two rival policies have been used in criminal justice. One is the punitive policy; the other is the treatment policy.’’ Generally, the trend toward one and away from the other is based on cultural change in the society (Sutherland, 1950). Considering the same class of criminal behavior (sex offenders), Brakel and Cavanaugh (2000) observe that ‘‘It is old news that the field of law known as mental health law is especially susceptible to these pendulum-like swings.’’ The interdisciplinary character, the ‘‘vagaries of science ... whose theories are not always easy to grasp by outsiders and whose relevance to legal methods and objectives is not always clear,’’ May, according to Brakel and Cavanaugh (2000, pp. 70–71), lead to a ‘‘tendency to lurch from one positional extreme to the other.’’ While Sutherland was considering the spreading of so called ‘‘sexual psychopath’’ laws when he observed (Sutherland, 1950, p. 147) that ‘‘Treatment tends to be organized on the assumption that the criminal is a socially sick person,’’ the same assumption motivates current mental health diversion programs. If a person is ill and that illness leads to or forms the basis for a behavior, then within acceptable bounds of public safety we can feel justified in excusing the conduct. The concept of relief from responsibility for criminal conduct is premised on the idea that not only does a treatable psychiatric disorder exist, but that the disorder is directly related to the particular type of criminal behavior. Social control turns to the medical model when we come to believe that advances in treatment will provide a reduction in crime. The growth on mental health or specialty courts seems premised on the idea that by establishing a connection between the individual defendant and the treatment community and then supervising that connection for a reasonable time period the court can promote treatment. This treatment engagement is then expected to reduce criminal behaviors (Wolff, 2003; Mears, 2004). Concerns regarding the growing number of persons with mental illness now found in the correctional system (Ditton, 1999; Quanbeck, Frye, & Altshuler, 2003) have led to proposals for the development of various diversionary mechanisms for shifting persons with mental illness who commit non-serious crimes out of the criminal justice system and into community based service delivery systems. The movement appears to be based on the premise that the cause of criminal behavior in persons with mental illness resides chiefly in the inadequacy of community based mental health services (Torrey et al., 1992). This development has occurred in response to what is seen as the inappropriate use of criminal justice interventions to address mental health problems—a practice that has led to concerns that symptoms of mentally disordered behavior have been ‘‘criminalized’’—i.e. treated as criminal offenses as a means of maintaining social order (Abramson, 1972). 278 A. J. Grudzinskas et al. Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) That such a dynamic would occur was predictable on the basis of a ‘‘hydraulic model’’ of social control first advanced in the 1930s by Penrose, who identified European countries where low numbers of persons committed to the mental health system corresponded to high numbers of persons committed to the prison system and vice versa (Penrose, 1939). Briefly, this theory suggests that the size of a jurisdiction’s correctional and psychiatric institutional populations vary inversely, such that when the rate at which one of these social control agents is used declines, the utilization of the other will increase, thereby maintaining a kind of social control homeostasis. It was this theory, in fact, that had been invoked as an explanation in some of the earlier reports of increased numbers of persons with mental illness appearing in the criminal justice system following the reform of state civil commitment statutes in the 1970s (Geller & Lister, 1978). As we noted, the belief that specialized criminal justice interventions or diversions is required to meet the needs of individuals with mental illness who break the law has sprung in part from the observation of a growing number of mentally ill in jails and prisons. The fact that jails in Los Angeles, Chicago, and New York have become the ‘‘largest mental hospitals’’ in the country has garnered much media attention (Blumstein & Beck, 1999; Barr, 1999). The observation by Torry et al. of the ‘‘abuse of jails as mental hospitals’’ (Torrey et al., 1992) and the report that 16.2% of persons in state prisons have a ‘‘mental illness’’ are all offered as evidence that we have an extreme breakdown in our systems of social control (Ditton, 1999). This paper will examine as a case study the involvement of a consortium of service providers, consumers, and criminal justice representatives in crafting a model for engaging persons with mental illness who come to the attention of police and the courts in a continuum of care. We will explore the policy implications of developing generalist training in crisis intervention and risk management for police officers rather than developing specialized police units to intervene in and manage crisis and risk. We will examine an ad hoc judicial intervention that utilizes the existing criminal justice structure rather than developing a specialty problem solving court. We will demonstrate the need to integrate all facets of a person’s social functioning in crafting plans to reduce the risk of continuing a revolving door of treatment, relapse, criminal behavior, arrest, and return to the same cycle. A RESPONSE FROM THE COURTS In the period between the mid-1950s and the mid-1990s, the rate of incarceration in the United States nearly quadrupled, increasing from about 100 to 450 per 100,000 population (Lamb & Weinberger, 1998). This same period saw a drop in state hospital beds from about 340 to 30 per 100,000 population (Pinta, 2000). This change in the nature of social control mechanisms and institutions has led to changes in the function of the courts as the overseers and brokers of social control and in some cases initiators of treatment. As Winick has observed, courts have traditionally functioned as ‘‘governmental mechanisms of dispute resolution, resolving disputes between private parties... or between the government and an individual concerning allegations of criminal wrongdoing or regulatory violations’’ ... but today ‘‘a range of new kinds of problems, many of which are social and psychological in nature, have appeared before the courts.’’ Courts ‘‘attempt to understand and The Worcester diversion experience 279 Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) address the underlying problem that is responsible for the immediate dispute, and to help the individual before the court to effectively deal with the problem in ways that will prevent recurring court involvement’’ (Winick, 2003). The structural response to these perceived problems has been the evolution of an array of ‘‘specialty courts’’ designed to address the unique issues of various classes of defendants. These courts are presided over by judges who develop and tailor specialized dispositions. This array of courts now includes juvenile courts, family courts, courts specializing in offenders with drug and alcohol problems, and, most recently, mental health courts. As was the case with other diversion efforts, mental health courts were born out of the recognition that, in dealing with offenders with mental illness, social order would more likely be preserved by attending to these defendants’ psychiatric disorders and mental health service needs than by imposing criminal sanctions. This belief was buttressed by America’s experience with drug courts, where judges could coerce defendants to engage in treatment as an alternative to incarceration (Goldkamp, White, & Robinson, 2001; Belenko, 1998; Hora, Schma, & Rosenthal, 1999) and by the effectiveness of at least some involuntary outpatient treatment protocols (Hiday, 2003). By the beginning of the 1990s, many judges of local courts were seeing an influx of persons with serious mental illnesses being brought before them as criminal defendants, often charged with non-violent misdemeanors such as trespassing, disorderly person, or possession of marijuana. In some cases, these persons were merely dealt with routinely without any reference to their mental health needs, with the result that a number of them were in fact incarcerated, although generally for short periods. Judges are afforded a unique vantage point for observing social change and are also uniquely positioned to effect changes in their locales. Thus, as more psychiatrically ill defendants appeared before them, some with alarming frequency, many judges were spurred to action. However, these experiences pushed members of the judiciary in different directions. In Broward County, FL, for example, it led to the development of a special court session in which certain defendants with mental illness were given the options of compliance with a community based treatment plan or jail. Because the treatment plan could be overseen by the judge, under the supervision of probation, non-compliance carried with it the potential for incarceration. This model, as we have noted, has been replicated in many jurisdictions (Steadman, Morris, & Dennis, 1995; Steadman, Davidson, & Brown, 2001; Griffin, Steadman, & Petrila, 2002; Goldkamp & Irons-Guynn, 2000). The concept of exactly what constitutes a mental health court (Hills, 2000), how mental health courts differ from other mechanisms such as post-booking diversion, and the sporadic way in which these entities have been implemented has made them difficult to evaluate empirically (Cosden, Ellens, Schnell, Yamini-Diouf, & Wolfe, 2003; Berman & Gulick, 2003; Watson, Hanrahan, Luchins, & Lurigio, 2001). The appropriateness of these courts has also been critiqued from a conceptual perspective (cf. Wolff, 2003; Mears, 2004). Diversion programs, mental health courts, problem solving courts, and specialty courts cannot, as Goldkamp and Irons-Guynn (2000) observe, order defendants to ‘‘be cured within 12 months.’’ People suffering from mental illness, co-occurring substance abuse, and homelessness have no ‘‘wonder drug’’ available to solve issues of illness, joblessness, poverty, and offending behavior in such short order. 280 A. J. Grudzinskas et al. Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) The mental health court is by no means the first attempt on the part of the judiciary to deal with the constellation of problems posed by defendants with mental illness. Other courts have taken a less structured approach, taking advantage of dispositional mechanisms already present in state law to construct alternatives for managing low-level offenders with mental illness. In the district courts in Massachusetts processes were developed on an ad hoc basis that would permit offenders to be diverted out of the normal trial route and into some appropriate treatment for their mental illness. The process invokes a pre-trial probation procedure available to the court, pursuant to Massachusetts General Laws (M.G.L.), Chapter 276, Section 87,1 that allows the defendant to agree to a set of conditions of probation for a period of six months to a year. These conditions can include requirements that the defendant undergo appropriate mental health treatment during that period. If the defendant successfully completes the probation requirements, the case is dismissed at the end of the probationary period. This procedure requires both the agreement of the defendant and his court-appointed attorney, as well as the approbation of the prosecuting attorney. It also requires the involvement of the court clinician, who can assess the need for care and treatment. (The Massachusetts system of court based clinics will be discussed below.) The authority of the court to leverage compliance is a major factor in accounting for the success of the program. The arrangement is always formalized before a judge, who inquires on the record of the defendant to ensure that the defendant knowingly enters the agreement, intelligently waives his rights, and will voluntarily participate in the treatment alternative mandated by the pretrial probation agreement. In this model, the defendant’s willingness to undergo the proposed treatment plan is essential to its adoption. Fundamental fairness requires that persons have the opportunity to participate in the decision making process. While the principles used in Massachusetts mirror specialty courts, they have been implemented without resort to special sessions or procedures not available to all criminal defendants. The concepts discussed are not limited to Massachusetts. An organization intended to assist defense counsel in their representation before specialty courts, The National Legal Aid & Defender Association (NLADA), has adopted ‘‘Ten Tenets of Fair and Effective Problem Solving Courts’’ as promulgated by the American Council of Chief Defenders. The tenets seek to ensure the rights and needs of the defendants before these forums. In addition to setting general policy provisions such as requiring that qualified representatives of the indigent bar be able to participate in the design, implementation, and operation of the court, they also call for the provision of specific rights to the accused individual. The tenets provide that the accused individual’s decision either to enter the specialty court or to 1 Massachusetts General Laws, Chapter 276, Section 87. Placing Certain Persons in Care of Probation Officer Section 87. The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty; provided, that, in the case of any child under the age of seventeen placed upon probation by the superior court, he may be placed in the care of a probation officer of any district court or of any juvenile court, within the judicial district of which such child resides; and provided further, that no person convicted under section twenty-two A or twenty-four B of chapter two hundred and sixty-five or section thirty-five A of chapter two hundred and seventy-two shall, if it appears that he has previously been convicted under said sections and was eighteen years of age or older at the time of committing the offense for which he was so convicted, be released on parole or probation prior to the completion of five years of his sentence. The Worcester diversion experience 281 Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) withdraw from it should be voluntary. They require that the court should not insist on a guilty plea as a requirement to enter the court. They require that the accused individual have the right to review with counsel the program requirements and possible outcomes. The tenets provide that treatment plans should be the least restrictive plan possible, and upon successful completion the charges should be dismissed with prejudice, and if possible, the record should be expunged. The National Mental Health Association (NMHA) recently issued its statement on Policy, Principles, Concerns, and Guidelines for dealing with mental health courts. The guidelines support diversion from the criminal justice system of persons accused of crimes for whom voluntary mental health treatment is a reasonable alternative to criminal sanctions. They call for referrals to occur at the earliest possible time, preferably before arraignment. They urge that the accused be allowed to make a voluntary, non-coercive choice whether to participate, that he or she have the right to refuse treatment, and that any proposed treatment be the least restrictive available. In addition, where there is a co-occurring substance abuse disorder, they recommend an integrated treatment plan, point out that relapses are inevitable, and suggest that minor relapses should not extend the time of the court’s jurisdiction. IMPLICATIONS FOR MENTAL HEALTH COURTS: LESSONS LEARNED IN SPECIALTY COURTS FOR DRUG OFFENDERS AND JUVENILES Criticism of the ‘‘specialty court approach’’ takes a number of forms. The courts are concerned that pre-adjudication continuance of cases leads to difficulty with evidence and witnesses if and when the court’s sanctioning powers are to be called into play, since the case has not yet been decided. Additionally, numerous procedural complaints have arisen over the compromised role of the judge as independent fact finder (Petrila, 2004). Addressing the extent of procedural due process provided in juvenile proceedings in 1966, Justice Fortas wrote that ‘‘ ... there is no place in our system of law for reaching a result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults, with respect to similar issue, would proceed in this manner’’ (Kent v. U.S., 1966). Today, specialty courts appear to ignore some of the lessons learned in the juvenile court. As Justice Fortas observed, ‘‘there may be grounds for concern that the [defendant] gets the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children’’ (Kent at p. 556), or in our instance for persons with mental illness (Grudzinskas & Clayfield, 2004). Mental health courts have also been compared to the drug courts, which have been in existence for some 15 years. Certain elements have been identified as common to all drug courts: immediate intervention, non-adversarial process, a hands-on judge, treatment programs with clearly defined rules and goals, and a team approach. Two of these elements should generate particular concern for advocates for the mentally ill. The non-adversarial nature of the proceedings and the hands-on 282 A. J. Grudzinskas et al. Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) judge recall images of the early days of the introduction of procedural safeguards into juvenile court proceedings. The substantive limits on governmental power protect a sphere of autonomy we believe is fundamental (e.g. one’s thoughts, bodily integrity, etc.), while the procedural limits ensure legitimacy of the process (i.e. effective fact finding, fairness, etc.) (Mills v. Rogers, 1982). It should be recognized that any person with serious mental illness who is to be the subject of a diversion program must be a willing and knowledgeable participant in the proposed treatment program being offered as an alternative to more severe options that the criminal justice system might mete out. This is particularly true in a court setting, where the trial judge should assure that not only has the defendant been given the full panoply of rights, but that the mentally ill person has been fully and fairly involved in the process that leads to any diversionary alternative. In general, legal rights can be classified into two categories. Substantive guarantees include the right to life, liberty, and property (not as some believe, the pursuit of happiness; no one ever guaranteed you’d be happy). Substantive rights can only be forfeited if the government can establish that it has a compelling interest that outweighs the individual’s liberty. Someone who commits a crime, for example, may because of the government’s compelling interest in ensuring public safety forfeit his or her own right to liberty. What is more relevant to this discussion is the issue of procedural justice, which basically refers to those protocols within the trial process that affect the degree of latitude the defendant is to have in the process, and to what extent he or she can be allowed to participate in the decision for a diversionary alternative. Procedural guarantees include the right to have the question of whether or not a substantive right should be forfeited determined in a specific manner that ensures fairness. Some procedural rights include the right to notice of the proceedings against you, the right to a hearing in a particular manner, the right (in cases involving a potential loss of liberty) to counsel, the right to confront witnesses and to cross examine those witnesses, etc. Both types of guarantee are necessary components of any fair trial process. Starting in 1969 and 1970, most states revamped their proceedings involving the mentally ill, both civilly and criminally, to provide a full range of procedural rights for the person involved in the commitment process. In commitment courts, respondents received rights to appointment of counsel, notice of and participation in all hearings, prompt decision by the hearing officer, and an available appeal procedure. The analogy of the denial of procedural rights to juveniles has already been mentioned. Juvenile courts in their rush to seek the most effective rehabilitation for the accused child often obscured the fact that key issues and rights relating to guilt or innocence had been overlooked, a state of affairs that was remedied by Kent and In re Gault and their progeny. The term ‘‘procedural justice’’ also has been used by Lidz et al. (1995) to measure the patients’ views regarding the fairness of their admission process to a mental health facility. It is clear that where prospective patients facing civil commitment are permitted to participate in the decision making process they accept the use of legal commitment if they feel ‘‘that they have been treated with respect, concern, and fairness in the process’’ (Lidz et al., 1995; Hiday, Swartz, Swanson, & Wapner, 1997; Poythress, Petrila, McGaha, & Boothroyd, 2002; Bennett et al., 1993; Swartz, Swanson, & Hannon, 2003; Swanson, Swartz, Elbogen, Wapner, & Burns, 2003; Rain, Steadman, & Robbins, 2003; McKenna, Simpson, & Coverdale, 2003; Hoge et al., 1998). The Worcester diversion experience 283 Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) An additional approach is one that takes advantage of pre-existing and legally required relationships between the court and the mental health system. Courts have always had to take cognizance of mental illness and its potential influence on judicial proceedings and dispositions (see for example the Massachusetts Court Clinic example discussed below). We would argue that this existing capacity could be leveraged to address the needs of offenders with mental illness. Over the last several decades the role of mental illness in shaping the outcomes of criminal proceedings has evolved substantially. Two principal areas where these circumstances arise are in determining competency to proceed and assessing criminal responsibility. We review these issues briefly. Competency to Stand Trial In order to receive a sentence to state prison, most jurisdictions require conviction of a felony level offense (serious, usually violent or weapon or drug related offenses). In all trials and or plea bargained dispositions, the court will have, if appropriate, assessed the defendant’s competency to stand trial. A person is competent to stand trial if he has ‘‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,’’ and whether he has a ‘‘rational as well as factual understanding of the proceedings against him’’ (Dusky v. U.S., 1960). In order to assess culpability for conduct, the law generally requires the concurrence of the actus rea, an ‘‘evil act,’’ and the mens rea, a ‘‘guilty mind.’’ The first concept, that ‘‘men were not to be tried for their thoughts’’ (Hales v. Petit, 1562) but required some evil deed, is simple enough to understand. No problem of criminal law is of more fundamental importance or has proved more baffling through the centuries however than the determination of the precise mental element or mens rea (Sayre, 1934). The question of when culpability should be excused is difficult to answer. Criminal Responsibility Defense counsel in most states would be free to assert a defense of ‘‘not guilty by reason of mental illness’’ or ‘‘guilty but mentally ill’’ if the facts of the case and the nature of the crime would warrant such action. The question remains then, was the behavior the result of a ‘‘mental disease or defect that caused the defendant to lack substantial capacity to either appreciate the criminality (wrongfulness) of his conduct, or to conform his conduct to the requirements of the law?’’ (Model Penal Code, 1970). It may be that some criminal conduct committed by persons with mental illness is not the result of the mental illness (Draine, Salzer, Culhane, & Hadley, 2002; Hiday, 1999; Hiday, Swanson, Swartz, Borum, & Wagner, 2001; Mears, 2004). There is no evidence to support the idea that exempting persons who are not acutely symptomatic at the time of arrest from accountability to the criminal justice system is beneficial to the individuals or to the community (Draine & Solomon, 1999). This is not to say that mental illness should not be taken into account in sentencing, or in mitigation of circumstances, but rather to assert that the integrity of the system of laws depends on only those persons who are not 284 A. J. Grudzinskas et al. Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) responsible for their conduct, being relieved of liability. Persons whose illness appears not to have been a factor in the crime have by virtue of their behavior exposed themselves to a loss of the substantive right to liberty. This may come not only in the form of incarceration, but also in the form of loss of autonomy over the decision to accept or reject treatment. It is also not intended that incarceration should be seen as a necessary policy in all cases; rather, it must be acknowledged that not all persons with mental illness who find themselves in the criminal justice system would benefit from a diversionary program. LETTING JUDGES BE JUDGES AND CLINICIANS BE CLINICIANS: AN ALTERNATIVE MODEL FOR DEALING WITH DEFENDANTS WITH MENTAL ILLNESS Whether they recognize it or not, all criminal courts are involved in the mental health business. The need to assess defendants’ competency to stand trial and criminal responsibility requires that all courts establish some linkage with mental health professionals who can conduct appropriate examinations and provide reports to the court. A study of the approaches taken in various states for conducting these pretrial ‘‘forensic evaluations’’ conducted in the early 1990 found substantial variability in the structure of the ‘‘court–evaluator’’ relationship. In some cases, courts had simply compiled a list of appropriate mental health providers who could be called upon as needed. In contrast, some states and counties maintained court-based mental health providers, in some cases financed by the state or county mental health agency (Grisso, Cocozza, Steadman, Fisher, & Greer, 1994). In Massachusetts, for example, a system of ‘‘court clinics’’ has been in operation since the mid-1980s. In this system, every district court in the Commonwealth has either physically located within it or quickly accessible to it psychologists, psychiatrists, and social workers who can provide necessary forensic assessments of competency to stand trial and criminal responsibility as well as data pertinent to sentencing and the need (if any) for care and treatment. These clinics, funded by the state’s Department of Mental Health, can easily become part of the fabric of the local mental health system. As such, they can become boundary spanners between the courts, the local mental health system, and even correctional mental health providers. This model would seem to have two distinct advantages over the mental health court model. First, the mental health professionals staffing the court clinic can be what Steadman (1992) has termed ‘‘boundary spanners,’’ maintaining strong ties with both their court’s personnel and providers in the local mental health system. Moreover, they are, in fact, experienced, knowledgeable mental health clinicians, familiar with assessing treatment and service needs. Second, judges can be informed in their decision making by reports of mental health professionals, freeing them from the hands-on, ‘‘social worker-like’’ role that of necessity is assumed by some mental health court judges. The role of the judge as independent finder of fact is thereby not only preserved but enhanced. The court clinic model is not one that has been widely implemented, but in an era where diverting defendants with mental health issues has come to be viewed as appropriate and desirable such clinics would appear to offer many benefits, not the least of which is the resources they provide the court in their role as a forensic evaluator. The Worcester diversion experience 285 Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) SERVICE INTEGRATION AS A KEY ELEMENT OF DIVERSION PROGRAMS As discussed earlier, the recognition of increased numbers of mentally ill offenders winding up in the criminal justice system has led a number of jurisdictions around the country to establish different types of police, court, or jail diversion programs that channel offenders, when appropriate, away from the criminal justice system and into mental health and/or substance abuse treatment programs. While diversion programs represent an important strategy to counteract the criminalization of persons with mental illness, integration of the criminal justice, mental health, and social service systems is proving to be the key to the success of these programs. Designed to focus on support rather than punishment, such programs prescribe two key strategies: (1) diversion of persons with serious mental illness from the criminal justice system; and (2) the better integration of existing mental health and social service programs with the criminal justice system to provide a seamless and continuous network of support capable of stabilizing and sustaining the mental health and physical and social wellbeing of this population. These programs have proven effective both in reconnecting individuals with (or, in some cases, introducing them for the first time to) much needed mental health services and in preventing criminal recidivism. Recognizing that many individuals experiencing a mental health crisis often have co-occurring issues of substance abuse and homelessness, any community-based intervention that is developed needs to be able to identify and address any combination of these issues in a coordinated and integrated fashion. This approach is supported by a growing body of research literature regarding the need to integrate mental health and substance abuse services to effectively treat individuals who are dually diagnosed with these issues (Drake & Mueser, 2000; Jerrel, Wilson, & Hiller, 2000; Minkoff, 2001; National GAINS Center, 2000; New Freedom Commission on Mental Health, 2003; USDHHS, 2002). According to a recent Substance Abuse and Mental Health Services Administration (SAMHSA) report to Congress addressing the prevention and treatment of co-occurring substance abuse and mental disorders, both homelessness and substance abuse among people with mental illnesses are associated with higher arrest and incarceration rates. The SAMHSA report concluded that the most effective way to address the problem of people with co-occurring disorders in the criminal justice system is to keep them from entering the system in the first place and provide effective treatment (USDHHS, 2002). Individuals with co-occurring disorders challenge both clinicians and the treatment delivery system (Hills, 2000). They most frequently use the costliest services (emergency rooms, inpatient facilities, and outreach intensive services), and often have poor clinical outcomes. The combination of problems increases the severity of their psychiatric symptoms and the likelihood for suicide attempts, violent behaviors, legal problems, medical problems, and periods of homelessness. Studies show that few providers or systems that treat mental illnesses or substance use disorders address the problem of co-occurring disorders adequately (USDHHS, 2002). The Surgeon General’s Report on Mental Health observed that ‘‘Effective functioning of the mental health service system requires connections and coordination among many sectors (public–private, specialty–general health, health–social welfare, housing, criminal justice, and education). Without coordination, it can readily become 286 A. J. Grudzinskas et al. Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) organizationally fragmented, creating barriers to access. Adding to the system’s complexity is its dependence on many streams of funding, with their sometimes competing incentives’’ (USDHHS, 1999, p. 407). The concept of therapeutic jurisprudence (Wexler, 1991) explains that the law works as a social force that may produce therapeutic or non-therapeutic results. If the court takes time to consider the impact of its effects and to tailor them in such a manner as to positively impact the therapeutic process, the desire to see medical solutions impact public safety and reduce recidivism may actually be realized. By allocating scarce resources in a manner best designed to impact as many persons with mental illness as possible, the court can begin to break the cycle. If in fact as Torrey envisions the lack of community based resources leads to criminal behavior in the first place, then the court becomes only another consumer standing in line. If on the other hand, the court recognizes that behavior is a part of the person’s makeup, the same as issues of substance abuse, homelessness, and mental illness, then it can fashion effective interventions to deliver access to a continuum of care. Regardless of the model a court adopts for managing defendants with mental health and substance abuse issues, certain factors will remain constant. The complex clinical issues presented by defendants with co-occurring disorders tend to worsen over time if not initially addressed, and consume greater resources, often at a higher cost, during periods of acute crisis. ‘‘In linking participants with cooccurring disorders to treatment alternatives, judges are testing the ways in which the specialty courts can serve as a therapeutic agent’’ (Peters & Osher, 2004). This concept of law as a therapeutic agent has been reflected in the creation and success of drug treatment courts over the past 15 years as a response to the revolving door of drug use and recidivism (Hora, 2002). The term ‘‘therapeutic jurisprudence’’ implies, in essence, that legal rules and procedures have therapeutic or remedial effects. Addiction specialists have learned to use coercion to engage a large population of alcohol- and drug-dependent individuals who are behaving in socially unacceptable ways, since the motivation to change often resides outside of the individual (Goldsmith & Latessa, 2001). WORCESTER SERVICE INTEGRATION INITIATIVE: A CASE STUDY Courts can direct individuals to services, but those services must exist, be in adequate supply, be accessible to court referrals, and be integrated to an extent that allows them to address the multiple and disparate needs of individuals with varying combinations of mental illness, substance abuse, housing, and medical needs. This means that, regardless of what model a court adopts for the imposition of coercion or therapeutic jurisprudence, it is likely to fail in the presence of a substantial disconnect between the court and the system or systems providing mental health and substance abuse treatment. These issues raise the question of what local judges or other agents of the criminal justice system can do to effect the necessary degree of integration among services in their jurisdictions and thereby increase the likelihood that their interventions with defendants will succeed. A systematic assessment of the strength and appropriateness of these linkages is, The Worcester diversion experience 287 Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) therefore, a logical and critical first step as courts undertake efforts to serve this population. A local case study illustrates how such linkages can be assessed. In Worcester, MA,2 the Massachusetts Mental Health Diversion and Integration Program (MMHDIP) has been working with a coalition of local law enforcement, service providers, consumer advocates, and research professionals (collectively referred to as the Worcester Diversion Consortium) to identify service strengths and gaps in delivering effective, integrated services to persons suffering with mental illness, substance abuse, and/or homelessness issues (our target population) in the community. The Worcester Diversion Consortium (WDC) provides a forum to address the current needs for our target population and facilitate better interagency communication, cooperation, and resource sharing. The WDC began in an effort by members of the Department of Psychiatry at the University of Massachusetts Medical School (UMMS) to develop a crisis intervention program not with the courts but instead in cooperation with the Worcester Police Department (WPD). The intention of the MMHDIP was to assist the WPD in developing a crisis intervention model somewhat along the lines of the model developed in Memphis (Dupont & Cochran, 2000). This model entails the development of a cadre of police officers who are provided with intensive specialized training in the management of incidents involving persons with mental illness. These officers, who comprise what is known as the Crisis Intervention Team (CIT), serve as a resource to other officers on their shifts, and can be called to manage such incidents when they arise. The WPD was not enthusiastic, however. They indicated that they already had a model in place that provided officers with a drop-off point for individuals needing mental health services. Moreover, they indicated a reluctance to develop specialty units beyond those already in place, and preferred to have their entire force sufficiently well trained in all aspects of policing that specialty units were not necessary. In addition to this ‘‘philosophical’’ position, more practical issues, including union regulations and the perceived likelihood that an insufficient number of officers could be trained to meet the demand for services of this kind, made the ‘‘well trained generalist’’ approach more attractive. An important goal of the WPD was achieving an efficient ‘‘handoff’’ from the cruiser to the crisis response setting. This requires that the array of services we have described be in place and ready to accommodate the needs of individuals brought to them by police. Such a setting must be able to prevent two scenarios that frustrate police officers. One occurs when an individual is brought to an emergency setting by a police officer who is expected to remain until the individual is seen, thereby taking the officer away from patrol duties. The second such scenario is one in which an 2 Worcester, MA, is medium-sized city in central New England (population 172,648) located roughly 50 miles from Boston. It is a five time winner of the All America City Program (http://www.ncl.org/aac/ index.html), an award sponsored by the National Civic League (http://www.ncl.org/index.html; a nonprofit organization founded in 1894 by Theodore Roosevelt for the promotion of local level political reform and for community building), which recognizes municipal excellence. According to 2000 Census Data (http://www.census.gov), the city’s median income is $35,623 with an ethnicity/race distribution of Caucasian 71%, followed by Latino 15%, and African-American 6%. Once a home to heavy industry, it now serves as the central urban hub for biomedical and high technology industries. Like many cities of its kind in the northeast and northern mid-western U.S., Worcester has been significantly affected by the decline of the steel and heavy machine industries, by the migration of the middle-class to the suburbs, and by the shift of retail activity from the city’s downtown area to outlying malls. Worcester offers a diverse range of neighborhood types, served by a single police department with approximately 400 officers. 288 A. J. Grudzinskas et al. Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) individual is taken to an emergency site, seen but not admitted, and promptly appears back on the street. Conversations with WPD officials suggested that, while they were not interested in developing a CIT in Worcester, they were very interested in avoiding the above scenarios. In that spirit, they began working with the MMHDIP team and representatives of local agencies to enhance the capacity of local health care and human services organizations to receive and effectively handle cases involving persons with mental illness. The MMHDIP convened an initial working group consisting of representatives from the WPD and the human services agencies most obviously involved in dealing with this issue. This group, which became the Worcester Diversion Consortium (WDC), was used as a kind of ‘‘seed’’ group from which, it was hoped, more would be learned about the local system, its components, and their interrelationships. In order to gauge and inform the level of interagency coordination and integration prevailing among the members of the WDC and identify those organizations in the consortium that needed to be better integrated within the system, the MMHDIP employed a Network Analysis Survey (NAS) utilizing UCINET 6.0 Social Network Analysis software (see Clayfield, Grudzinskas, Fisher, & Roy-Bujnowski, 2005). We should note that our application of network analysis in this context differs somewhat from the way it is typically used. First, other research using NAS focused on the evaluation of programs that are specifically aimed at altering the structure of an existing service system over time, often comparing systems before and after an intervention (cf. Morrissey et al., 2002; Morrissey, Johnsen, & Calloway, 1998; Morrissey, Calloway, Johnsen, & Ullman, 1997; Morrissey et al., 1994). We utilized network analysis techniques to paint a picture of how organizations in the WDC were integrated at that time in dealing with our target population. We identified weak links (those organizations that needed to be better integrated in the network) and also discovered other stakeholders through the ‘‘system bounding’’ process that needed to be part of the WDC. These agencies were then invited to join the WDC and to attend the monthly meetings hosted by the MMHDIP. This information helped in identifying better ways to access resources in the community. Second, our network analyses were made mainly to gather data that could be promptly folded back into the system development process. The purpose of our NAS thus was to inform an integration process rather than simply to analyze it. The results of the analysis had implications for the police, the courts, and the local human services establishment. The Worcester network analysis not only assessed the current strengths of relationships between the organizations in the WDC in terms of how they were then dealing with our target population, but also asked what each member organization envisioned to be the ‘‘ideal’’ service system to meet the myriad of needs of our target population. Even the ideal analysis revealed the current need for better integration of both police and court-related services within the current system. As identified by members of the WDC, the main barriers to better service integration among their agencies included a lack of health insurance for our target population, which limits treatment options; the stigma of being involved with the criminal justice system and how it limits access for our target population to programs and housing; poor communication between agencies in regards to referrals and feedback to help ensure our target population does not fall through The Worcester diversion experience 289 Copyright # 2005 John Wiley & Sons, Ltd. Behav. Sci. Law 23: 277–293 (2005) the cracks; the lack of familiarity with (and faith in) other organizations of the WDC and the services they provide; and restrictive eligibility criteria. The identified barriers thus included circumstances that the WDC would collectively address and work to resolve, as well as others, such as a shortage of appropriate housing, whose solution would require political action at a higher level of government. Despite these barriers to service integration, agencies in the WDC continue to meet monthly to create strategies to overcome these issues, realizing that the varied needs of offenders with mental illness cross all agency lines, repeatedly, and only by developing methods to share information and resources in a coordinated and integrated manner will this cycle of heavy service use be broken. BARRIERS TO SERVICE INTEGRATION The benefit of integrating treatment modalities and service delivery systems has been identified in a number of different disciplines (Human Rights Watch, 2003). Yet, widespread barriers impede effective treatment for people with co-occurring disorders at all levels, including federal, state, and local governments, and individual treatment agencies (New Freedom Commission on Mental Health, 2003). ‘‘Each of these programs has its special purpose, its unique sources of funding, its particular eligibility requirements, its own mode and standards of operation, and sometimes, its own geographic catchment area. Together, these features define system fragmentation’’ (Morrissey et al., 1998, p. 297). Lack of funding for the development of integrated, community based services necessary to permit safe transition of persons with mental illness from inpatient treatment to community based settings has led to difficulties in accessing services and ensuring a seamless continuum of care. One of the goals in the final report of the President’s New Freedom Commission on Mental Health (2003) states (p. 9) that ‘‘In a transformed system, consumers rights will be protected and enhanced ...services will be readily available so that consumers no longer face unemployment, homelessness, or incarceration because of untreated mental illnesses.’’ Only by promoting and developing a change in the various stakeholders’ cultures can they come to see the need to integrate the criminal justice system into the service delivery continuum (Clayfield et al., 2005). So what of the role of the court? As we have described them, courts are in the ‘‘mental health business’’ because their ability to dispose of criminal cases in constitutionally appropriate and socially beneficial ways requires that they take cognizance of defendants’ psychological status. This has led to the evolution of a variety of evaluative structures, such as court clinics and referral mechanisms, and most recently a new breed of specialty court that focuses intensively on the defendant’s mental illness and its treatment in its consideration of how best to manage certain defendants with psychiatric disorders. Whether or not they assume the status of mental health courts, however, is beside the point; their caseloads include many persons with mental disorders, substance abuse, and a host of other medical, housing, and social problems of various kinds. To manage this caseload in the most efficient, humane and cost effective manner requires that the court become part of a system of referral that itself is fully embedded within the fabric of the local provider system. This in turn requires a new kind of judicial activism, one aimed at fostering the development of a system to which they can feel comfortable referring 290 A. J. Grudzinskas et al. 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