Mental health courts and forensic assertive community treatmen

SPECIAL ISSUE ARTICLE
Mental health courts and forensic assertive
community treatment teams as correctional
diversion programs
Jacqueline Landess, M.D., J.D. | Brian Holoyda, M.D., M.P.H.
Department of Psychiatry and Neuroscience,
Division of Forensic Psychiatry, Saint Louis
University School of Medicine, St Louis, MO,
U.S.A.
Correspondence
Jacqueline Landess, M.D., J.D, St Louis
University School of Medicine, Department of
Psychiatry and Neuroscience, Division of
Forensic Psychiatry, 1438 S. Grand Blvd, St.
Louis, MO 63104, U.S.A.
Email: [email protected]
Problem‐solving courts (PSCs) developed as a means of mandating
treatment and judicial supervision of certain types of court participants. PSCs have rapidly expanded in number and type over several
decades. Mental health courts (MHCs) are a type of PSC that arose
in response to the growing number of persons with mental illness
within the criminal justice system. Their primary role is to divert
individuals with mental illness from incarceration into psychiatric
treatment and to reduce recidivism while improving psychosocial
functioning of participants. Although different in history, philosophy, and program structure, forensic assertive community treatment
(FACT) programs serve a similar goal of reducing recidivism and
improving functioning in persons with mental illness who are
involved with the criminal justice system. FACTs may be used as a
standalone diversion option or be linked with a MHC as a form of
intensive treatment and monitoring. Suggestions for future research
and evaluation of these programs are offered.
1 | INTRODUCTION
Mental health courts (MHCs) developed as a means of providing treatment to individuals with mental illness who
become involved in the criminal justice system. MHCs represent a type of problem‐solving court (PSC), which is
broadly defined as a specialized court that mandates treatment and judicial supervision of participants, so that participants may avoid prosecution, incarceration, and/or sentencing. MHCs have differing eligibility criteria, selection processes, and treatment requirements. FACT teams, on the other hand, grew out of the assertive community treatment
(ACT) movement, which attempted to maintain individuals with severe mental illness within the community and to
reduce adverse mental health outcomes by providing intensive, holistic, client‐centered care meant to address the
participant’s mental health and psychosocial needs (Lamberti & Weisman, 2010). We describe the birth and evolution
of these two systems of care and the data on their effectiveness in addressing mental health and criminal justice outcomes for individuals with mental illness involved in the criminal justice system.
Received: 31 May 2017 Revised: 25 June 2017 Accepted: 30 June 2017
DOI: 10.1002/bsl.2307
Behav Sci Law. 2017;35:501–511. Copyright © 2017 John Wiley & Sons, Ltd. wileyonlinelibrary.com/journal/bsl 501
2 | PROBLEM‐SOLVING COURTS
Problem‐solving courts developed to mandate treatment and judicial supervision of certain types of court participants.
Judges and court officers attempt to understand and address “the underlying problem that is responsible for the
immediate dispute, and to help the individuals before the court effectively deal with the problem in ways that will prevent recurring court involvement” (Winick, 2002, p.1055). Common examples of PSCs include drug, mental health, re‐
entry, family, driving under the influence, veterans, domestic violence and tribal wellness courts.
Problem‐solving courts differ from traditional criminal courts in a number of ways. While the criminal justice
system’s typical goals are to deter, incapacitate, and rehabilitate, PSCs are founded on the principle of therapeutic
jurisprudence, a term introduced by David B. Wexler and Bruce J. Winick over 25 years ago (Durden & Daicoff,
2005; Wiener, Winick, Georges, & Castro, 2010). Therapeutic jurisprudence focuses on the “law as a therapeutic
agent” and attempts to neutralize anti‐therapeutic effects of the law. It invokes a new approach to “chronic social,
human and legal problems … that have proven resistant to conventional solutions, to broaden the focus of legal proceedings, from simply adjudicating past facts and legal issues to changing the behavior of litigants and ensuring the
future well‐being of communities” (Berman & Feinblatt, 2001, p. 126). PSCs attempt to decrease the “revolving door”
phenomenon of the criminal justice system, labeled by some as “Mcjustice,” which has produced a large degree of judicial dissatisfaction (Acquaviva, 2006). PSCs also differ from traditional courts in that judges have greater interaction
with defendants and the option to use community resources (such as ordering inpatient or outpatient drug or mental
health treatment, vocational rehabilitation, medication management, and others) as sanctions instead of jail time, with
ongoing court monitoring to ensure adherence to and success of treatment (Sammon, 2008).
For adult offenders, the first PSC was created in 1989 with the establishment of a drug treatment court in Miami‐
Dade County (Kirchner, 2014). This court was established as a response to the crack epidemic, the “war on drugs,” and
the resulting flood of drug offenders into the criminal justice system. In exchange for treatment, strict supervision, and
accountability, non‐violent drug offenders were offered a chance to avoid incarceration and address the behaviors
that led to their criminal involvement, and reduce their risk of reoffense. The drug court model has proven effective
in multiple studies showing a reduction in recidivism, even after program completion, along with cost savings due to
decreased prison time, court costs and rearrests (Marlowe, 2010; Mitchell, Wilson, Eggers, & MacKenzie, 2012). These
courts are viewed as successful models of alternative justice and account for the bulk of existing PSCs in the U.S. In
2012, the Bureau of Justice Statistics identified more than 3,000 PSCs within the U.S., with drug courts comprising
approximately 40% of these courts (Strong & Kyckelhahn, 2016). Drug courts have served as a driver and model
for the establishment of other PSCs, including mental health courts.
3 | THE INCEPTION OF MENTAL HEALTH COURTS
Drug courts continued to proliferate following their inception in the late 1980s. However, drug courts did not
address the problems of other populations with frequent law enforcement contact and their need for therapeutic
alternatives. The perceived “criminalization” of persons with mental illness, well‐documented in the literature, demonstrates that those with psychiatric disorders experience increased arrest rates, more frequent denial of bond,
and increased jail and prison time (McFarland, Faulkner, Bloom, Hallaux, & Bray, 1989; McGaha, Boothroyd,
Poythress, Petrila, & Ort, 2002; Teplin, 1984; Torrey et al., 1992). This perceived “criminalization” and need for
diversion prompted the creation of a Mental Health Task Force in Broward County, Florida in 1994. The task force
comprised multiple stakeholders within the community and the criminal justice system whose collaborative work
led to the creation of the Broward County MHC in 1997, which modeled itself after other PSCs, such as drug
court, but with a focus on defendants with mental illness accused of ordinance violations or minor offenses
(McGaha et al., 2002).
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Across the U.S., MHCs were initially slow to grow. However, increased focus on the burgeoning number of
detainees with mental illness (some studies show that 8–20% of those incarcerated suffer from major psychiatric illness) prompted increased legislative focus on the need for diversion (Steadman, Osher, Robbins, Case, & Samuels,
2009; Teplin, 1990). In 2002, Congress passed Public Law Number 107–77, which authorized $4 million in funding
for mental health courts (Wolff, 2002). This legislation, along with increased state and private sources of funding, contributed to MHC growth. In 2013, a little over 15 years after the creation of the first MHC, the Substance Abuse and
Mental Health Services Administration Gather, Assess, Integrate, Network and Stimulate center (SAMHSA GAINS)
estimated that there were 347 MHCs across the U.S. (Honegger, 2015). No doubt, this growth will continue. Most
recently, Congress passed the bipartisan 21st Century Cures Act, which authorized further funds in support of efforts
to decriminalize mental illness and divert individuals with mental illness from the justice system (Council of State Government Justice Center Staff, 2016).
4 | MENTAL HEALTH COURT STRUCTURE
Mental health courts are heterogeneous because each individual court’s policies, procedures, and processes differ
greatly (Sarteschi, Vaughn, & Kim, 2011). A typical MHC requires that participants meet both legal and clinical eligibility criteria to be accepted to the specialized docket. Courts may decide to accept only those charged with misdemeanors or ordinance violations, low‐level felonies, or non‐violent crimes. Generally, MHCs appear to accept both
misdemeanor and felony offenses. One study surveying 87 MHCs indicated that approximately 60% of MHCs
accepted felony cases (Redlich, Steadman, Monahan, Robbins, & Petrila, 2006). Some courts have expanded their
criteria to include violent felony offenses on a case‐by‐case basis, such as the Brooklyn, New York MHC (Council
on State Governments, 2009). Once all parties, including the judge, prosecutor, defense attorney, and other court
staff, have agreed that a participant is legally eligible, the participant must meet clinical criteria, which usually requires
documented presence or history of a mental illness. Although some courts allow a person’s report of mental illness to
suffice, others require more formal screening and diagnosis of psychiatric disorders and determination of eligibility
(Council on State Governments, 2009).
Once accepted into the MHC, participants must then give informed consent to the terms of participation in the
court, which commonly include engaging in substance/mental health treatment, maintaining sobriety, taking psychotropic medication, attending court hearings and agreeing to intensive monitoring. Participants are expected to follow a
treatment plan, which is formulated by community treatment providers, court staff, or both. Participants may also be
subjected to ongoing supervision by probation officers, in addition to the clinical monitoring of their treatment team.
A participant who violates terms or conditions of the MHC agreement can be subjected to sanctions, including
increased level of psychiatric/substance use treatment, community service, or jail time. Most existing MHCs require
a participant to enter a guilty plea upon entry to the MHC, while some only enroll participants after revocation or violation of probation or parole (Council of State Governments, 2008; Strong & Kyckelhahn, 2016). MHCs vary in length
of participation required for program completion/graduation. In some courts, the instant offense may be dismissed or
expunged upon program completion (Stafford & Wygant, 2005; Strong & Kyckelhahn, 2016). Other MHCs may allow
participants to enter the MHC without a formal plea, with the participant leaving jail on secured or unsecured bond
and directly entering psychiatric treatment.
5 | CHALLENGES IN MENTAL HEALTH COURT RESEARCH
As Professor Wiener noted, “While the philosophy of problem solving courts is well‐articulated, specific models of
how the courts influence offenders remain poorly specified” (Wiener et al., 2010, p. 419). Challenges to MHC research
include the lack of experimental designs, non‐representative samples, failure to follow participants over the long term,
LANDESS AND HOLOYDA 503
variable and poorly defined clinical and legal eligibility criteria, and lack of formalized, strategic systems of evaluation,
including the measurement, monitoring, and tracking of participants’ symptoms and other outcomes.
Existing research on MHCs tends to be descriptive rather than empirical. Much of the MHC literature simply
describes specific courts (Wiener et al., 2010). In her synopsis of peer‐reviewed articles of MHCs, Honegger (2015)
noted that only one study of an MHC used an experimental design, while the others used quasi‐experimental and
pre‐ and post‐test designs. Recidivism and psychiatric outcomes are defined in various ways, further challenging
researchers’ attempts to define an evidence‐based model. For instance, in the meta‐analysis performed by Sarteschi
et al. (2011), no effect size for mental health outcomes was determined due to the idiosyncratic nature of MHCs.
Additionally, Steadman and Redlich (2006) found few organized models or systems of case referral and processing
in their analysis of seven MHCs.
With regard to the MHC selection process, some MHCs exclude felony and/or violent offenses. Some MHCs
have poorly defined clinical eligibility criteria, only specifying that a participant be seriously, severely or simply mentally ill (Honegger, 2015). Some courts are more specific in their requirements, only allowing diagnoses of major psychiatric illness such as bipolar disorder, schizophrenia and major depression and excluding intellectually or
developmentally disabled candidates (Frailing, 2010; Luskin, 2013). During the selection process, other courts consider whether a relationship exists between the participant’s psychiatric disorder or symptoms and their criminal
involvement (Council on State Governments, 2009). In sum, existing literature is not generally clear on how potential
participants are evaluated to determine whether they have a formal psychiatric diagnosis and how their treatment
plan is formulated and implemented.
The absence of clearly defined clinical eligibility criteria and the over‐inclusion of middle‐aged, white males
charged with lower‐level crimes in MHCs have led some to question whether these courts are “cherry‐picking” defendants with higher chances of success (Stafford & Wygant, 2005). In order for an MHC’s methods and outcomes to be
generalizable, it should include participants representative of the population of criminal justice‐involved individuals,
such as young adult minority (principally African‐American) males who tend to be over‐represented in the correctional
setting (Wolff & Pogorzelski, 2006).
Accessibility and linkage to community providers and the court’s ability to enforce treatment recommendations
are also variable. An MHC cannot divert participants to nonexistent community services. A court may request a specific level of service, such as placement within a residential treatment center or ACT team, but most courts have no
ability to enforce the recommended level of treatment in the community (Bazelon Center for Mental Health Law, n.d.).
6 | MENTAL HEALTH COURTS AND RELATIONSHIP TO PSYCHIATRIC
FUNCTIONING
Existing literature shows mixed findings of the association between MHC participation or completion and improved
psychiatric functioning. Cosden, Ellens, Schnell, and Yamini‐Diouf (2005) used an experimental design to compare
changes in Global Assessment of Functioning (GAF) scores between MHC participants and the treatment as usual
(TAU) group and found that both groups experienced increase in GAF scores over time. Cosden et al. also measured
changes in substance‐abuse behaviors between these groups, and found that while both groups showed improvement
on Addiction Severity Index (ASI) scores, MHC participants fared better over time. MHC clients also demonstrated
greater improvement in quality‐of‐life scores. Cosden et al.’s (2005) analysis is complicated by differences in treatment between the MHC and TAU groups. The MHC group received ACT level of services, whereas the TAU group
was offered non‐intensive case management and medication.
Emergency room (ER) or inpatient psychiatric services have been used as a proxy for measurement of psychiatric
functioning. One study found that MHC participants had increased use of both the ER and inpatient services at 1‐year
follow‐up, with MHC participants hospitalized and using the ER at higher rates. The authors suggested that one possible explanation for this is that MHC participants were better linked to services (Steadman & Naples, 2005). Others
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have found no significant differences in the use of ER or crisis services between treatment and TAU groups (Keator,
Callahan, Steadman, & Vesselinov, 2013).
7 | MENTAL HEALTH COURTS AND IMPACT UPON RECIDIVISM
Recidivism can have many definitions but in a general sense includes recurrence of criminal justice involvement such
as through new arrests or incarcerations. It can also include technical violations (e.g., failing to show up for a probation
appointment) and new offenses. Most existing studies of MHCs report recidivism reduction, however it is defined,
amongst participants (Dirks‐Linhorst & Linhorst, 2012; Herinckx, Swart, Ama, Dolezal, & King, 2005; Hiday, Wales,
& Ray, 2013). Steadman, Redlich, Callahan, Robbins, and Vesselinov (2011) performed a multisite, longitudinal study
of four MHCs and found that those in the MHC group had fewer days of incarceration and were less likely to be
arrested than the TAU group. McNiel and Binder (2007) performed a retrospective analysis comparing MHC participants with other adults with mental illness who were booked into the jail during the same time period. They found
that MHC participants were 26% less likely to obtain new charges and 56% less likely to obtain violent charges than
the TAU group. Additionally, McNiel and Binder reported that MHC graduates maintained a lower likelihood of
recidivating even after they were no longer under the court’s supervision. In contrast, some studies have found no difference in criminal justice outcomes between MHC participants and TAU, including no difference in time to rearrest,
the number of arrests, jail days or convictions between MHC participants and TAU groups (Christy, Poythress,
Boothroyd, Petrila, & Mehra, 2005; Cosden et al., 2005). Honegger (2015) summarized the existing literature and
observed that the following factors, in various studies, have been associated with decreased recidivism of MHC participants: graduation from an MHC, Hispanic ethnicity, more serious charge, fewer incarcerations and arrests pre‐
entry, no substance use history, and a diagnosis of bipolar disorder over schizophrenia or depression. Conversely,
Honegger observed that substance use, not completing an MHC, having a higher lifetime arrest or jail days, lower education, and being non‐white, younger, and on disability predicted poorer recidivism outcomes.
The current literature could represent moderate gains in our understanding of the relationship between MHC
diversion and recidivism. Alternatively, it could in part represent a publication bias, such that studies showing no statistical differences between MHC participants and TAU or poor outcomes of MHC participants go unreported and
unpublished. Another concern, as mentioned previously, is that MHCs “cherry‐pick” or “skim” higher‐functioning, less
ill defendants to participate, increasing the MHC’s chances of generating improved legal and clinical outcomes (Wolff,
2002). On the other hand, judges may be making informal decisions around voluntariness, motivation and competency, deciding to divert defendants with serious mental illness who are unable to consent or meaningfully participate
in an MHC into the competency restoration process, or into a pre‐plea diversion program (Stafford & Wygant, 2005).
Despite these challenges to understanding how to interpret existing data, literature is cautiously optimistic about
MHCs’ ability to decrease recidivism, especially among MHC graduates. Further research is needed to replicate
existing findings in a systematic way, as well as to identify specific characteristics of participants who tend to
recidivate and why.
8 | HOW BEST TO ACHIEVE SUCCESS IN MENTAL HEALTH COURTS?
8.1 | Participant perceptions of fairness and respect
Procedural justice posits that one’s satisfaction with clinical or legal experiences is influenced more by the fairness of
the process than the specific outcome (Kopelovich, Yanos, & Pratt, 2013). People, processes, and environments that
promote accountability and are firm, fair, and encourage respect and compassion for the individual’s struggle and
human experience are likely to result in better outcomes for participants, who will see the law as more legitimate.
In particular, the role of the judge in an MHC appears to be critical in fostering this environment and maximizing
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MHC success (Fisler, 2005). Judges in PSCs are generally not neutral observers, but are actively involved in collaborative decision‐making with multiple stakeholders (Portillo, Rudes, Viglione, Nelson, & Faye, 2013). This active
involvement and greater contact with a judge often lead participants to feel an increased sense of empowerment
and perception of procedural justice and reduced coercion (Muntez, Ritter, Teller, & Bonfine, 2014).
The process by which a potential participant is solicited and consents to engage in an MHC should also honor and
respect the individual’s legal rights and ensure that he or she is making a truly voluntary decision. Some literature has
noted that MHC participants, while acknowledging consent to participate, do not always know that court participation
is voluntary, and know little more than basic information about the court when asked (Redlich, Hoover, Summers, &
Steadman, 2010). A discussion with the potential participant about court expectations, length of monitoring, potential
sanctions and benefits needs to occur with a representative of the court and the individual’s attorney present. Participants should be informed of all options available to them, including jail or prison time, which in some cases may result
in less overall time spent within the criminal justice system. Mental health treatment should be offered regardless of
MHC participation. Court staff and attorneys should also be mindful of cognitive impairments that may influence a
potential participant’s understanding of the MHC, as well as monitoring for those individuals who lack capacity to give
informed consent due to their level of impairment.
8.2 | Adjudicative competency as it relates to participation in MHC
If a court requires a guilty plea to participate in the MHC, participants must demonstrate adjudicative competence to
enter a plea, including appreciation of rights waived by entering such a plea. The Supreme Court determined that
pleading guilty does not require a higher level of competency than standing trial (Dusky v. U.S., 1960; Godinez v. Moran,
1993). Nevertheless, it seems logical that a number of potential MHC participants would be excluded from participation in a post‐plea MHC model, given the relationship between incompetency to proceed and severe psychiatric
disorders.
Nationally, about 20% of those referred for a competency examination are found incompetent to proceed
(Mossman, 2007). Within MHCs, it is not clear how often potential participants are referred for competency evaluations. An Akron, Ohio, MHC found that 77% of those referred for competency evaluations from the MHC were
incompetent to proceed (Stafford & Wygant, 2005). About half of those patients were not restored to competency
after nearly 2 months of treatment, suggesting severe psychopathology.
Particularly if a defendant is charged with a felony, diversion through an MHC can allow expedient treatment and
civil commitment if necessary, and perhaps render the competency question moot, if the criminal defendant also
meets criteria for civil commitment. Of course, if an MHC only operates under a post‐plea model, individuals who
are probably incompetent to proceed would not be eligible to participate given their lack of adjudicative competence.
Permitting both pre‐ and post‐plea options for MHC entry would therefore be likely to yield the largest number of
individuals with mental illness who could be redirected into treatment via an MHC.
8.3 | Selection of participants
Mental health courts are similar to drug courts in that they were founded on the assumption that treating a criminal
justice‐involved person’s mental illness would lower recidivism rates and increase psychiatric functioning. The literature to date has not fully supported that assumption, as “strong evidence exists that the causes of recidivism are the
same for those with and without mental illness” (Lamberti, 2016, p. 1207). Others have found that less than 20% of
crimes committed by individuals with mental illness were directly related to their mental illness (Peterson, Skeem,
Kennealy, & Bray, 2014). Certain conditions, such as mania or psychosis, when combined with substance use, can
increase risk of violence and potential contact with law enforcement, but a person’s mental illness is not always proximally related to the commission of a crime (Link, Andrews, & Cullen, 1992; McFarland et al., 1989; Swanson, Holzer,
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Ganju, & Jono, 1990). Some MHCs consider whether a participant’s mental illness is directly or even partially related
to their alleged crime, though not all consider this as a selection criterion.
Lewis et al. (1991) attempted to categorize defendants with mental illness based upon type of offending. In their
model, the first group commits nuisance crimes, such as trespassing or disorderly conduct, which are probably a “by‐
product of their illness” (p. 118). The second group consists of those arrested for “survival” crimes, such as theft and
panhandling, which result from homelessness and limited financial means. The third type are repeat offenders who
commit serious crimes and whose “mental disorder seems incidental or secondary to their criminality.” It would seem
logical to conclude that an MHC should select defendants charged with nuisance and/or survival crimes, given the
more likely link between that person’s crime and mental illness. Others argue that MHCs in these cases only increase
criminal involvement of persons who are indigent and have mental illness. The Bazelon Center noted that in over 40%
of such courts the length of judicial supervision exceeds the possible length of probation or incarceration for the
underlying offense (Center for Mental Health Law, n.d.). It is particularly important that defendants in these cases
not be detained or diverted into an MHC if others who are similarly situated would be released or have their charges
dismissed.
Increased probationary supervision of low‐level offenders may actually increase sanctions and detection of new
offenses. MHCs for nuisance or survival crimes probably exist as a response to the lack of community resources for
those with chronic mental illness whose crimes mostly result from a lack of food, housing, psychosocial support,
and adequate treatment. For those who commit nuisance or survival crimes, it is possible that pre‐booking or pre‐plea
diversion schemes, with a focus on enhanced community treatment and resources targeting the underlying problem,
would work best to decrease recidivism and increase functioning while respecting autonomy and protecting against
discrimination.
For those defendants with mental illness who engage in more serious crimes, MHC participation might be the
only option to avoid incarceration and expedite treatment. Although some MHCs decide to only accept defendants
who commit non‐violent crimes and low‐level felonies, it is not entirely clear that this strategy enhances participant
success. In other words, a defendant’s chance of recidivating is higher if he/she has multiple criminogenic risks and
needs that are not addressed, regardless of the specific crime or mental illness. Core criminogenic risk factors include
history of antisocial behaviors, antisocial cognition, criminal companions, antisocial personality patterns, family problems, substance abuse, lack of healthy recreational pursuits, and work or school problems (Andrews & Bonta, 2010).
As Lamberti (2016) noted, mental health providers typically address four of these factors in their assessment and
treatment but often do not assess and treat the thought patterns, attitudes and associations that can lead a client into
the criminal justice system. Mental health providers should increase collaboration with probation officers and the
court to broaden their assessment of criminal justice‐involved individuals and to incorporate evidence‐based tools
to assess criminogenic needs and thinking. One such tool is the Level of Service/Case Management Inventory, which
assesses all eight criminogenic risk factors (Andrews, Bonta, & Wormith, 2004). As Matejkowski stated, “An approach
that pairs evidence‐based treatment with accountability under close supervision for offenders with psychiatric or substance use disorders could be more effective at promoting public health and safety than either treatment or supervision alone” (Matejkowski, Festinger, Benishek, & Dugosh, 2011, p. 271).
9 | FORENSIC ASSERTIVE COMMUNITY TREATMENT TEAMS
Mental health courts represent one option for diversion of persons with mental illness from the criminal justice system
into treatment. The Sequential Intercept Model (SIM) notes that there are many potential points of contact, intervention, and diversion both pre‐ and post‐booking (Munetz & Griffin, 2006). Although a review of all pre‐ and post‐booking diversion programs is outside the scope of this article, an under‐studied and perhaps under‐utilized tool for
diversion is that of the FACT team. FACT programs grew out of the original ACT model, the goal of which was to provide intensive, holistic, client‐centered psychiatric care for individuals with severe mental illness who were at high risk
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of decompensation in the community. In 2004, Lamberti, Weisman, and Faden coined the term “forensic assertive
community treatment” to describe ACT programs that required participants to have a history of involvement with
the criminal justice system, referral from a criminal justice agency, and a close partnership with a criminal justice
agency to perform jail diversion. Typical programs incorporated probation officers into the ACT team and used legal
leverage to promote client engagement and to reduce the risk of criminal recidivism.
Although FACT teams have traditionally been used as court‐mandated treatment for individuals with severe mental illness as a condition of probation or following release from a jail sentence, they could also be implemented as a
component of a post‐booking diversion program and could conceivably be linked to an MHC as an option for intensive
treatment. Having the option to refer an MHC participant to a FACT team could help to assuage judicial concerns
regarding public safety surrounding the release of individuals with severe mental illness back to the community after
booking. In addition, MHCs that allow pre‐plea diversion could utilize FACT services to divert clients lacking the
capacity to enter a plea.
Although the authors are unaware of studies on FACT teams coordinated with MHC programs to provide such
services, Cosden et al. (2005) evaluated a combined MHC and ACT program and compared it with regular case management. The authors found that participants in the MHC/ACT group had more bookings after entering the program,
which they deemed secondary to a failure to differentiate bookings related to violating the ACT program regulations
from those for criminal charges. Although there were no significant differences in criminal justice outcomes, participants in the MHC/ACT program demonstrated a more significant reduction in psychological distress and drug problems and a greater improvement in quality of life than did control subjects over time. Other research on FACT teams
has demonstrated that as a standalone service it can reduce participants’ number of outpatient visits, hospital days
and bookings (Cusack, Morrissey, Cuddeback, Prins, & Williams, 2010).
There are many concerns regarding the implementation of FACT teams that have arisen since their inception.
Similar to MHCs, the data supporting FACT as a standalone approach or component of a combination diversion program are limited and the outcomes for participants remain unclear, in part due to the heterogeneity of programs and
the lack of high‐quality research (Marquant, Sabbe, Van Nuffel, & Goethals, 2016). In addition, some have expressed
concern regarding the use of legal leverage to promote adherence to FACT. One study demonstrated that enrollment
in FACT may actually lead participants to have an increased number of bookings secondary to violations of stringent
program regulations as opposed to new criminal charges (Cosden et al., 2005). Some have pointed out the potentially
coercive aspect of utilizing legal leverage to encourage adherence to FACT, which may provide mental health clinicians with a role and powers similar to probation officers (Solomon & Draine, 1995). Others have noted the autonomy‐sparing functions of legal leverage, which can promote an individual’s health and independence (Lamberti
et al., 2014). Future research should provide additional evidence regarding the effect of FACT teams on diversion
efforts and mental health outcomes for clients, as well as the approach’s utility in combination diversion programs
with MHCs.
10 | SUMMARY
Existing research of MHCs is limited by lack of generalizability and standardization; however, the literature is cautiously optimistic in terms of an MHC’s ability to reduce recidivism and improve functioning of participants, particularly if they complete or graduate from an MHC. In creating an MHC, adherence to certain principles and designs
may be auspicious (Council of State Governments, 2007). First, these programs should increase the education of
and collaboration with probation departments, given that participants often have increased contact with probation
under these models and greater opportunity to be “caught” or violated on technicalities. Second, MHCs should
increase focus and research on those participants with co‐occurring substance use and psychiatric illness, as existing
research shows that these individuals are at much higher risk for violence, recidivism, and poor functional outcomes.
Third, programs and teams should use systematic methods to screen and select participants based on psychiatric
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diagnosis, but also to identify and address participants’ criminogenic risks, needs, and responsivity. Once participants
are stratified according to their criminogenic risks, a treatment team can formulate a more sophisticated, complex
treatment plan with a holistic approach to the mentally ill person’s most pressing psychiatric and psychosocial needs
and motivators.
Finally, MHCs represent only one approach to the diversion and treatment of criminal defendants with mental
illness. MHCs may link with additional treatment approaches to reduce the involvement of individuals with mental illness in the criminal justice system, such as ACT or FACT teams (Cosden et al., 2005). Court systems may be most comfortable diverting individuals with serious mental illness who are charged with serious crimes into the treatment
structure of a FACT team, given the greater level of treatment supports and monitoring along with criminal justice
supervision. However, special attention should be paid to the potentially coercive aspects of such an arrangement
and the possibility that a participant may be more likely to be reincarcerated if the mental health staff act as probation
officers by proxy.
Optimally, communities and systems should design collaborative, comprehensive programs that not only divert
but also seek to prevent initial or further entanglement of persons with mental illness within the criminal justice system. When designing diversion or prevention programs, communities should employ multiple strategies, such as pre‐
and post‐booking programs and bolstering existing community resources, such as the availability of acute stabilization
units, substance treatment, and subacute care to address the psychiatric, criminogenic, and socioeconomic needs of
the community’s most vulnerable members. Despite the availability of other options, an MHC may be the best alternative to incarceration, depending on context, for a defendant with mental illness charged with a serious felony. Thus
it is crucial that MHCs or similar models continue to exist as options for those persons with mental illness charged
with more serious crimes, who are in need of psychiatric treatment but for whom other alternatives, such as a plea
of not guilty by reason of insanity (NGRI), are not viable. Although existing research is promising in some regards,
future research should focus on determining who does well in MHCs and why, so that criminal justice and community
mental health systems with limited resources can more efficiently and appropriately treat individuals with mental illness who are involved in the criminal justice system.
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How to cite this article: Landess J, Holoyda B. Mental health courts and forensic assertive community treatment teams as correctional diversion programs. Behav Sci Law. 2017;35:501–511. https://doi.org/10.1002/
bsl.2307
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