Therapeutic courts have enjoyed a recent surge in popularity. These courts provide an alternative to the traditional criminal justice system and focus on rehabilitation rather than deterrence or retribution. (1) Rather than rely on the adversarial model where the state is pitted against the defendant, these courts seek to promote a coordinated and integrated response by the state to the challenges and needs posed by the offenders that appear before these courts. As a result, the judges in these courts tend to actively interject themselves in the cases brought before them. (2)
The increasing use of therapeutic courts can be traced to the perceived success of drug courts. As will be discussed, drug courts have been highly praised for diverting offenders with minor charges but significant substance addictions away from jail and into more effective and appropriate rehabilitative programs. Not surprisingly, drug courts have been widely used as a model for other specialty courts.
A newly emerging group of therapeutic courts are the mental health courts (MHCs). Many jurisdictions have introduced or plan to introduce MHCs as an alternative to typical criminal adjudication for persons suffering from mental illness. MHCs have arisen partly as a response to the increasing criminalization and incarceration of individuals with a mental illness. In conjunction with the move towards deinstitutionalization, individuals with a mental illness are less likely to be hospitalized and more likely to be found in the community. (3) Whereas in 1960, 500,000 individuals with a mental illness resided in public hospitals, the current census shows that only about 60,000 now live in such facilities. (4) Meanwhile, communities have often failed to provide an adequate support network to help individuals with a mental illness thrive and succeed in the community setting. (5) Not surprisingly, the number of prison inmates with a mental illness has steadily increased to 300,000,6 and a survey by the Bureau of Justice Statistics found that 16% of the inmates in local jails, 16% of probationers, 16% of state prison inmates, and 7% of federal inmates have reported a mental illness. (7)
The National Alliance for the Mentally Ill estimates that 25-40% of individuals with a mental illness will come into contact with the criminal justice system at some point in their lives. (8) Without adequate community treatment, individuals with a mental illness are more likely to be symptomatic in the presence of law enforcement officers and, subsequently, more likely to be arrested. (9) Officers may arrest a person who exhibits symptoms of mental illness in both an effort to stop disruptive behavior (10) and to help the person find food, safety, and shelter. (11) Rather than deal with the complexities of finding adequate care in the mental health system, assuming this alternative is available, officers may simply route the person into the criminal justice system. An officer's decision may in part rest on a belief that "deviant behavior can be dealt with quicker and more effectively within the criminal justice system than the mental health system." (12) Once taken into custody, an offender with a mental illness may find it difficult to obtain release on bond. As a result, the placement of individuals with a mental illness in this country's correctional facilities continues to increase.
During incarceration, the condition of inmates with a mental illness tends to deteriorate further. The stress of incarceration may exacerbate symptoms. (13) These inmates are prone to assaults, rapes, and other forms of victimization, and to being disciplined, including placement in solitary confinement, "for violation of codes of conduct that they cannot begin to understand while in crisis." (14) Not surprisingly, jail and prison inmates suffering from mental illnesses are more likely to commit suicide. (15) Furthermore, while in a correctional facility, adequate mental health treatment is unlikely. …