Breaking the Cycle of Recidivism: Alternative Sentencing for Criminal Defendants with Psychiatric Illnesses
An Overview of the San Francisco Behavioral Health Court
By Oskar Vidaurre, PWDF Staff
The movement away from institutionalization and toward community-based treatment for people with mental illness has been taking place since the 1960s. While community-based treatment has been widely recognized as a more effective, humane form of treatment for the majority of mental health consumers, unfortunately, community-based treatment services are not always voluntarily accessed by those most in need of help. Because of this, correctional facilities tend to serve as de facto mental institutions for all those who slip through the cracks. Through Pauline Clark’s personal story and her experiences with the San Francisco Behavioral Health Court, the importance of comprehensive programs that engage and divert people with psychiatric disabilities away from incarceration and into effective and accountable community-based treatment becomes readily apparent.
Pauline Clark was standing at a corner in San Francisco’s seedy Tenderloin district when she was approached by an apparently drunk man. The stranger begged her to go into a nearby liquor store and buy him alcohol. Pauline desperately seized the opportunity to steal the cash from the man’s shirt pocket (all of six dollars) and attempted to flee.
“At that point, approximately eight undercover policemen jumped out of their cars and arrested me,” Pauline later recalled. Convicted of grand theft for the robbery, Pauline served fifteen months in Central California Women’s Facility, the largest women’s correctional facility in the United States.
The Road to Deinstitutionalization
In 1955, more than 500,000 people in the United States were housed in state mental hospitals. Mass deinstitutionalization began in the 1960s, and, by December 1998, only 57,151 people remained institutionalized in state mental hospitals. The most popular reason for deinstitutionalization was recognition that community-based care for persons with mental illness would be more humane, more therapeutic, and more cost-effective than institutionalization. Mental health advocates were concerned that hundreds of thousands of people with disabilities were shuttered in isolation with unnecessary care.
In place of institutionalization, community-based treatment is now embraced as the method of choice for treating the majority of cases of psychiatric illness in large part due to Title II of the ADA, which requires the maximum community integration for healthcare by states. See Olmstead v. L. C., 527 U.S. 581 (1999).
In today’s economic climate, the resources of community-based organizations that provide services to those with psychiatric illness are limited. To complicate matters, people with mental illness often do not seek out these community-based services in the first place - some may deny or be unaware that they have a mental illness, and some may attempt to self-medicate with alcohol or other drugs. All too often, people with psychiatric disabilities who are unwilling or unable to receive services from community-based providers or who are unable to continue to meet the requirements of participation in such programs end up interacting with first responders.
Yet the police and emergency medical technicians are usually not well-trained to effectively deal with people with psychiatric disabilities. Their only options in these situations are to release them or to enter them into custody against their will, perhaps due to their being perceived threats to themselves or others. The psychiatric service components of public hospitals and jails have become the intake mechanism for psychiatric services for those that refuse voluntary services. Many have even made the case that correctional facilities, by and large, have replaced state mental hospitals, and there is evidence to support that claim: A special report from the U.S. Department of Justice in 2006 revealed that, “[a]t midyear 2005 more than half of all prison and jail inmates had a mental health problem….”
Since so many people with psychiatric illnesses are cycling through the criminal justice system, new programs that intervene at the point of arrest for hard-to-serve clients and that are based on collaboration between community-based treatment services and the criminal justice system have gained increasing support.
The San Francisco Behavioral Health Court
One such model that intervenes post-arrest and pre-trial is the mental health court model, examples of which have sprung up around the country in major cities to address the unmet needs of arrestees with mental health issues. San Francisco’s Behavioral Health Court is one such example.
Upon incarceration, prisoners in San Francisco County, California, are all given medical evaluations. Prisoners who have psychiatric issues are then evaluated by Jail Psychiatric Services (JPS). If JPS concludes that a prisoner’s misdemeanor or felony could have occurred due to behavior connected to their mental illness, they may be eligible for voluntary participation in the Behavioral Health Court (BHC). Eligibility is contingent upon further evaluation by BHC’s legal and medical teams and, in the case of violent crimes, sometimes requires approval by the District Attorney. Procedures are in place to assure that BHC is used appropriately and not just as an “easy out” of incarceration.
Diversion to the BHC in place of being tried in criminal court is entirely voluntary, but the requirements to remain in the program and graduate are intensive. Participation combines involvement in a supervised residential recovery program and compliance with personalized treatment regimens. The participants must appear before California Superior Court Judge, now Honorable Mary Morgan, on a regular basis. The frequency of visits and the intensity of services depend on the progress the participant has made. Judge Morgan receives reports from the residential recovery programs and comments on participants’ progress. She also listens to participants who have concerns or problems with their individualized treatment and addresses those concerns or problems in turn.
Examining BHC's Effect on Recidivism Rates
In 2007, Dale McNiel, Ph.D., and Renee Binder, M.D., of the University of California, San Francisco (UCSF), conducted research evaluating the effectiveness of mental health courts by studying San Francisco's Behavioral Health Court. They observed 170 BHC participants over a period of two years in comparison to over 8,000 people who served jail terms and had mental illnesses comparable to participants in the BHC group.
Eighteen months after entry in the program, individuals in the BHC group were 26% less likely to commit any new crime than their incarcerated counterparts, and they were also 55% less likely to commit a new violent crime.
When Pauline returned to San Francisco from Central California Women’s Facility, she immediately resorted to her old way of life: living homeless on the streets, with no income and an untreated mental disability. Pauline suffers from bipolar disorder and, eventually, developed an addiction to illegal drugs. On June 3, 2007, Pauline was arrested again for commercial grand theft and was set to return to state prison. While being held in county jail, Pauline was given the opportunity to participate in Behavioral Health Court instead of serving her prison term. Pauline agreed to comply with the stipulations of BHC and enrolled into the program on October 31, 2007.
A Look Inside: BHC Hearings
I recently attended a BHC hearing held in San Francisco’s Hall of Justice. When I entered the courtroom, it was replete with other BHC participants, family members, and case managers. As I struggled to find a seat, I noticed a BHC participant, Sean Lawrence, speaking directly to Judge Morgan in a comfortable and friendly manner. Sean was enthusiastic about the progress he had been making recently and gushed about a new job he had just started. Judge Morgan pointed out some specific things she was pleased to see in his report and then led the room in a round of applause – something she does after every positive hearing.
Not all reports to the court were favorable. In one case, a man, reeking of alcohol, stumbled up to the podium. With one eyebrow raised, Judge Morgan calmly stated, “I got a very bad report for you, Mr. Alvarez. You have not been taking your medication, and you have not shown up to [your residential recovery program] for a week.”
Alberto Alvarez attempted to excuse his lack of participation by insisting that he had been pursuing medical treatment from an unauthorized clinic. Judge Morgan’s expression was stern and unsympathetic, suggesting that she had heard this before from him. Alberto was raising his voice by this point, sensing that he was about to get “kicked out of Behavioral Health Court and sent back to criminal court.” Indeed, Judge Morgan proceeded to order him sent into custody; within seconds, three officers entered the usually inviting courtroom, handcuffed Alberto, and escorted him out. Clearly, Judge Morgan has no problem disenrolling people who are not making the effort to recover.
Of the twenty hearings I witnessed, the majority were positive, and Judge Morgan was never short on praise for the hard work participants had put into their rehabilitation. Participants sometimes receive other incentives to continue complying with their treatment plans, including reduced frequency of court appearances, less restrictive treatment plans, certificates of achievements, and other forms of positive behavioral reinforcement.
Involvement in Behavioral Health Court helped transform Pauline Clark. From the beginning, she never missed a single court hearing with Judge Mary Morgan.
“I think Judge Mary Morgan is a very great person… with a deep understanding for people like myself with mental illnesses and substance abuse [problems] that really need help. I always looked forward to going to court,” Pauline said.
In addition to her perfect attendance in the courtroom, Pauline complied completely with her mental health treatment plan as well as her drug rehabilitation regimen despite several years of addiction.
BHC's Role in Helping the Homeless
Whereas the average American may not directly feel the effects of improperly treating and imprisoning millions of people with mental disabilities, other consequences of hasty deinstitutionalization are more clearly evident. Anyone who has walked through downtown San Francisco knows that homelessness is a huge issue here. According to a 2003 story from the San Francisco Chronicle, there are 8,000 - 15,000 homeless people in San Francisco alone. Of those people, 3,000 to 5,000 are “hard-core” homeless - in other words, they do not sleep in shelters and live full-time on the streets. About 40% have mental illnesses.
According to the previously mentioned UCSF report, 34% of the BHC participants studied were homeless at the time of their arrest. Based on this data, BHC serves not only San Francisco’s mentally ill population but also provides desperately needed rehabilitation and treatment for many of the city’s homeless.
Due to BHC’s limited capacity, there are still countless jailed people with mental disabilities who never receive the treatment they need. According to Lisa Lightman, Director of San Francisco’s Office of Collaborative Justice, people who elect to join BHC are put on a waiting list until there is space, which usually takes about two months. Clearly, the demand for BHC services outweigh current capacity. Mental health courts are one of the most highly regarded models currently in place to provide mental health treatment to people whose struggles with mental illness have led to frequent contact with the criminal justice system, and differences in recidivism rates demonstrate the model’s effectiveness. The expansion of mental health courts, both in capacity and number, will help result in less criminalization of mental illness, increased effectiveness of mental health services, reduced costs, and more positive outcomes.
Pauline graduated from Behavioral Health Court in October 2008 and was one of the graduates making a speech at the graduation. Noting that she had so much working against her upon her enrollment to BHC, Judge Morgan introduced Pauline: “To be honest, I never expected Pauline Clark to be as thoroughly successful as she was.”
Pauline received a standing ovation after her short speech. Many notable people were in attendance, including San Francisco Supervisor Bevan Dufty, representatives from the Office of the District Attorney, San Francisco County Jail, and the Public Defender’s Office.
Today, Pauline spends her time sharing her story with others and volunteering for KQED, a local public television affiliate. She currently lives in co-op housing and is still attending Alcoholics Anonymous meetings.
H.R. & Bachrach, L.L. (Aug. 2001). Some Perspectives on
Deinstitutionalization. American Psychiatric Association.
52(8):1039-45. Retrieved September 16, 2008, from www.psychservices.psychiatryonline.org/cgi/ 2
Butterfield, Fox (Mar. 5, 1998). Asylums behind Bars: A Special Report:
Prisons Replace Hospitals for the Nation's Mentally Ill. The New York
Times. Retrieved September 18, 2008 from query.nytimes.com/gst/fullpage.html?res=9903E5D61331F936A35750C0A96E958260.
Department of Justice (Sep. 2006). Mental Health Problems of Prisoners and
Jail Inmates. Bureau of Justice Statistics Special Report. NCJ
213600. Retrieved September 18, 2008, from www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf.
D.E., & Binder, R.L. (2007). Effectiveness of a Mental Health Court in
Reducing Criminal Recidivism and Violence. American Journal of
Psychiatry. 164: 1395-403. Retrieved September 10, 2008, from ajp.psychiatryonline.org/cgi/content/full/164/9/1395.
names of participants cited in regard to Behavioral Health Court hearings
have been changed to protect their privacy.
3 Butterfield, Fox (Mar. 5, 1998). Asylums behind Bars: A Special Report: Prisons Replace Hospitals for the Nation's Mentally Ill. The New York Times. Retrieved September 18, 2008 from query.nytimes.com/gst/fullpage.html?res=9903E5D61331F936A35750C0A96E958260.
4 U.S. Department of Justice (Sep. 2006). Mental Health Problems of Prisoners and Jail Inmates. Bureau of Justice Statistics Special Report. NCJ 213600. Retrieved September 18, 2008, from www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf.
5 McNeil, D.E., & Binder, R.L. (2007). Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence. American Journal of Psychiatry. 164: 1395-403. Retrieved September 10, 2008, from ajp.psychiatryonline.org/cgi/content/full/164/9/1395.
6 All names of participants cited in regard to Behavioral Health Court hearings have been changed to protect their privacy.
K. (Nov. 30, 2003). Shame of the City: The hard core stuck on street.
San Francisco Chronicle:A-1. Retrieved September 10, 2008, from www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/11/30/MNGIK3BE671.DTL& People With Disabilities Foundation is an operating
501(c)(3) nonprofit organization based in San Francisco, California, which
focuses on the rights of the mentally and developmentally disabled. Advocacy: PWDF advocates for Social
Security claimant's disability benefits in eight Bay Area counties. We
also provide services in disability rights, on issues regarding returning
to work, and in ADA consultations, including areas of employment, health
care, and education, among others. There is representation before all
levels of federal court and Administrative Law Judges. No one is declined
due to their inability to pay, and we offer a sliding scale for attorney's
fees. Education/Public Awareness: To help
eliminate the stigma against people with mental disabilities in society,
PWDF's educational program organizes workshops and public seminars,
provides guest speakers with backgrounds in mental health, and produces
educational materials such as videos. Continuing Education Provider: State
Bar of California MCLE, California Board of Behavioral Sciences Continuing
Education, and Commission of Rehabilitation Counselor Certification.
People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.
Advocacy: PWDF advocates for Social Security claimant's disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney's fees.
Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF's educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.
Continuing Education Provider: State Bar of California MCLE, California Board of Behavioral Sciences Continuing Education, and Commission of Rehabilitation Counselor Certification.
The mission of the People With Disabilities Foundation (PWDF) is to provide education and advocacy for people with psychiatric, developmental, or both psychiatric and physical disabilities so that they can achieve equal opportunities in all aspects of life.
PWDF does not provide legal assistance by email or telephone.
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