December 2005

Mental Health Courts - An Idea Whose Time Has Come?

In Madness and Civilization, Michel Foucault suggested that people began to be defined as "crazy" as the plague died out in Europe. Large hospitals that had been built to sequester plague victims stood empty. Rather than being torn down, the buildings were used as mental institutions. People with mental illnesses were removed from society, rather than cared for by their families, as they had been (and are now, often). I was intrigued by the notion that mental illness could be defined by the society in which a person lived, as much as by the individual's behavior in that society.

In the twentieth century, Freud gave gravitas to the notion of mental illness by identifying and providing treatment for some mental illnesses. This new science of psychiatry seemed a natural evolution at the time. We had come to believe that we could solve all of our human problems using scientific methods.

Of course, it turns out that humans are more complicated than Professor Freud thought. That ought not to be surprising, since the sample from which Freud drew when formulating his theories consisted largely of people of a single gender, a single class, and a single ethnic background - there is more diversity at Sunday brunch at the average diner on the Upper West Side than there was among Freud's patients.

Even the term "mental illness" is telling. It implies that a mental illness is different from a physical illness, which suggests that mental illness could be faked. But recent research suggests that mental illness has a distinct physical component. Scientists inform us that people with mental illnesses have difficulty absorbing chemical neurotransmitters in the same way as "normal" people do; that is why some drugs work, because they affect brain chemistry. So, at least in some people, what we call "mental illness" starts out as a hormonal imbalance, which may lead to unpleasant or uncontrollable, sometimes criminal, behavior. (Of course, when medical studies are done predominantly on males, a whole dimension to the hormonal story is left out - but that is a theme for another column.)

In other people who have more complicated mental disorders, scientists speculate that mental disorders are caused in part by environmental factors. Studies done on twins separated at birth prove that there is some genetic predisposition to some of these disorders.

All of this information becomes significant when we consider how to treat those who have a mental illness. Our society depends upon a consensus as to what is acceptable behavior, and those who behave in an unacceptable way are punished. We all agree that we need to protect society from harm, and one way to do that, certainly, is to incarcerate a person who harms others. But we also agree that the rules ought to be applied differently to a person who acts without being in control of his own actions. That is the idea behind the concept of Drug Courts, and a more recent idea, Mental Health Courts (MHCs). MHCs were authorized by Public Law 106-515, "America's Law Enforcement and Mental Health Project," which provided grants for courts in 37 jurisdictions in 2002 and 2003.

An MHC is intended to protect the public, as is any criminal court. But in an MHC the judge and all personnel look beyond the immediate situation. If an offender commits an offense because of his mental illness, how does it serve society to send this offender to prison, where his mental illness is untreated, and where he will not learn to control his behavior in the future? Advocates for the mentally ill argue that prison often makes the defendant worse. A person who cannot control his behavior on the outside often cannot control himself on the inside. He is routinely punished for violating prison rules, possibly sent to solitary confinement. His illness worsens. When he is released from prison, he often has no support system. By definition, he lacks capacity to advocate for himself, and the behavior caused by his illness may have alienated the family and friends who would otherwise advocate for him. He winds up back in society, and more dangerous to us.

The MHC is an attempt to break that cycle. In an MHC, the defendant has been identified as someone with a major mental illness, such as schizophrenia or bipolar disorder. If the defendant consents to participate in the program, and the prosecutor agrees, personnel at the MHC work with the defendant (and possibly his family) to come up with a treatment plan. They arrange for the defendant to be admitted to the treatment program. The defendant is accountable - he must report periodically to the judge, who assesses his compliance with the treatment regimen. If the defendant successfully completes the treatment program, his guilty plea can be vacated, or the charges against him can be dismissed, depending upon the severity of the crime.

We have two such courts in NYC - one in the Bronx, and one in Brooklyn. The court staff includes a team of clinical psychologists. In Brooklyn, there is one judge assigned to the MHC, and the prosecutors who appear in the court are the same ones. As a result, the personnel develop a greater understanding of mental illnesses, which makes the program more effective.

Is a Mental Health Court a good idea? In a perfect world, mentally ill people would have access to treatment before committing crimes. MHCs pose constitutional issues concerning, e.g., due process rights, such as the length of the treatment program (usually 1-2 years) as compared to the length of the possible sentence, and the potential for pressuring the defendant into participating in the program. However, we now have short-term results that are encouraging, showing lower than usual rates of recidivism. It is much harder to calculate the potentially profound impact on people who receive appropriate treatment, and who are able to become productive members of society, instead of career criminals. Add in their family members, especially younger siblings, and the impact of this program could be enormous.

There are many issues to consider when setting up a Mental Health Court. The Council of State Governments is on the third draft of its memo, "Essential Elements of a Mental Health Court," available at www.consensusproject.org/mhcourts/essential.elements.

It is wonderful to be able to write about a government program focused on problem-solving, particularly one using professionals from more than one discipline to solve a multi-disciplinary problem. Kudos to the Center for Court Innovation, OCA's Court Operations and Planning staff, and all those who are willing to put so much time and effort into such a potentially important change in our society.

Archives

November 2005

In her column for November President Christina Kallas asked us all to honor the memory of Ms. Rosa Parks by making one change. To view the President's message in full, click here. .

October 2005

In her column for October in honor of Mediation Settlement Month, President Christina Kallas discusses whether mediation is an underused tool in a lawyer's toolbox. To view the President's message in full, click here. .

September 2005

In her column for September, President Christina Kallas reflected upon the changes in our country since September 11th. To view the President's message in full, click here. .

June 2005

In her column for June, President Christina Kallas discusses change and continuity. To view the President's message in full, click here. .

April 2005

In her column in April, President Elizabeth Bryson talked about sexual politics and "women's work." She took issue with Harvard President Lawrence Summers' recent remarks implying that women are innately less suited to pursing careers in science or engineering. Such retrograde thinking is self-defeating. Mr. Summers had to apologize, and Harvard is now actively address the status of women in academia. Ms. Bryson also discussed upcoming events, including the Association's Annual Meeting, a CLE program on "Evolving Opportunities for Women' Lawyers," the Foundation's next fundraising breakfast, the WBASNY Convention, and of course our fantastic 70th Anniversary celebration on June 1st. To view the President's Message in full, click here.

February 2005

In her column in February, President Elizabeth Bryson talked about matters of life and death. She related the experiences of a friend fighting breast cancer and her mother and family addressing the loss of two brothers to AIDS several years ago, and how each circumstance, though very different, teaches us once again the importance of choosing to live life to its fullest every day. By contrast, she considers the proposal in the NYS Legislature to reinstate the death penalty, and WBASNY's brave stance in opposition. To view the President's Message in full, click here.

January 2005

In her column in January, President Elizabeth Bryson discussed the importance of taking steps to ensure that judges in New York have the appropriate qualifications and integrity to ensure the fair and equal administration of justice. She discusses pending legislation and proposed amendments to the Rules of Judicial Conduct that would have an influence on the method of selecting state court judges and the rules that would apply to candidates for judicial office in New York. Ms. Bryson was honored to chair a WBASNY Task Force to look at the proposed legislation and rule changes, and she discusses the process and proposals. She also describes the recent gala celebration WBASNY's 25 Anniversary and the wonderful presentation of the inaugural "Betty Weinberg Ellerin Mentoring Award" to Justice Ellerin. Finally, she reminds everyone of the importance of ensuring that their membership is renewed by January 31, 2005. New members are also welcome, and they can join for half-price dues starting in January! To view the President's Message in full, click here.

December 2004

In her column in December, President Elizabeth Bryson discussed the importance of speaking out and being heard. She demonstrated the value of the Association's screening of candidates for judicial office, particularly now, when the integrity of the judiciary is under attack. Because many of our members practice in solo and small firm settings, Ms. Bryson recommended that members appear before the Commission on Solo and Small Firm Practice, which is holding hearings and looking for comments, concerns and suggestions to make the lives of attorneys in these settings and their clients easier. Members should also plan to join us at several upcoming events that promise to be very exciting, including the NYWBA Foundation's Breakfast Series Speaker Event, a fundraiser scheduled for December 1st, WBASNY's 25th Anniversary Gala on December 2nd that will pay tribute to our own past President, the Honorable Betty Weinberg Ellerin, for her nearly 50 years of mentoring and service to women attorneys and judges throughout New York and across the country, and the New York Women's Agenda's Star Breakfast on December 7th. To view the President's message in full, click here.

November 2004

In her column in November, President Elizabeth Bryson celebrated all the wonderful programs and events that happened this fall, including our Annual Membership Reception. She also discussed the recent controversy with respect to screening the qualifications of candidates for judicial office in New York County, which became the subject of an article in the New York Law Journal. To view the President's message in full, click here.

September 2004

In her column in September, President Elizabeth Bryson asked members to join her in celebrating the Association's 70th Anniversary year (2004-05). Coincidentally, it was also the 25th anniversary year for the Women's Bar Association of the State of New York (WBASNY), which is the umbrella organization for all 16 women's bar associations across New York State. The NYWBA and its past President Joan Ellenbogen were instrumental in the formation of WBASNY, and it is a joy to see that it is flourishing. This is Beth's second term as President, and in her column she discussed the excitement of continuing programs begun last year and new programs that will begin this year. She also congratulated everyone who was involved in the wonderful year-end festivities, including our Annual Dinner and the WBASNY Convention. To view the President's message in full, click here.

April 2005

In her column for April, President Elizabeth Bryson congratulated several women who make history every day, including the 11 honorees designated for Women's History Month by the National Women's History Project and the New York City Commission on Women. She provided an update on the proposed rules that we have supported to allow asylum for women who are victims of domestic violence or other brutality that is directly or indirectly endorsed by their country's governments. Ms. Bryson also highlighted numerous upcoming events, including the NYWBA Annual Meeting and the Annual Ethics Forum, both in April, and the Women's Bar Convention in New Orleans and the NYWBA Annual Dinner, both in May. To view the President's message in full, click here. .

March 2004

In her March 2004 column, Ms. Bryson notes that NYWBA's membership has increased by over 33 percent from last year, and nearly 50% from two years ago. She praises the terrific work of NYWBA members, Officers, Board members, Committee Chairs, and others who worked on our membership drive and demonstrate why our bar association is so important, strong and vital. She also salutes two people who may not be lawyers but whose contributions are absolutely invaluable to the Association and the NYWBA Foundation - Executive Director Marta Toro and NYWBA Foundation member Denise Coleman. "Our Association is blessed with so many wonderful women and men who contribute their talents." To view the President's message in full, click here.

February 2004

In her February 2004 column, Ms. Bryson discussed the importance of mentoring and networking, especially for women attorneys. She also announces that the Association's Annual Meeting will be on April 28, 2004, when the 2004-05 officers and directors will be elected. Our gala Annual Dinner will be on May 26, 2004. At that event, awards will be presented to Linda Greenhouse, Pulitzer Prize winning author and New York Times reporter covering the U.S. Supreme Court, and the Hon. Jacqueline Silbermann, Administrative Judge of the NY County Supreme Court and Chief Administrative Judge for NYS Matrimonial Courts. To view the President's message in full, click here.

December 2003

In her December 2003 column, NYWBA President Elizabeth Bryson profiled important issues for our military, including the incidents of rape and sexual harassment at our military academies, the scourge of domestic violence, and the shameful track record of "don't ask, don't tell." She also discussed our exciting membership drive and the Reception Honoring Newly Elected and Appointed Judges. To view the President's message in full, click here.

November 2003

In her November 2003 column, NYWBA President Elizabeth Bryson discusses the importance and benefits of membership, as well as the recent visit of distinguished attorneys from Malaysia who were invited by the U.S. State Department to meet with NYWBA representatives. To view the President's message in full, click here.