Perlin on Mental Health Courts

Up on SSRN: Michael L. Perlin, 'There are No Trials Inside the Gates of Eden': Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence, in Coercive Care (Bernadette McSherry & Ian Freckelton, eds., forthcoming).  The abstract:

The ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities. It is most significantly changed in the area of mental disability law. Always marginalized, individuals with mental disabilities have always been “outsiders” in the world of international human rights law, with many important global human rights agencies traditionally expressing little or no interest in the plight of this cohort. Internationally, persons in forensic mental health systems generally receive, if this even seems possible, less humane services than do civil patients. Prisoners with mental disabilities are treated inhumanely in most nations, both in correctional facilities and in forensic mental health facilities.

Advocates have begun to consider whether the CRPD can potentially remediate this situation, but ratification is too recent to see much concrete change. One potential remedy lies in the expanded use of mental health courts as a means of 1) infusing therapeutic jurisprudence (TJ) into the legal process; 2) assuring that the standards of the CRPD are met; and 3) treating persons with mental disabilities with dignity in the court process. There are now multiple mental health courts in the United States, as well as others in Canada, the United Kingdom and Australia, but few in civil law nations. Advocates should seize upon the ratification of the CRPD as a launching pad for an international movement to create such courts to emulate the successes of those in common law nations that have operated with dignity using a TJ model while adhering to civil rights and civil liberties principles.

This chapter seeks to explore the intersection between international human rights and the mental health court movement. I begin here, however, with a cautionary note. Notwithstanding the potential great value that mental health courts have for persons with mental disabilities involved in the criminal justice system, it is essential that these courts do not lose their original focus as therapeutic jurisprudence-based courts, and that judges and court administrators resist the temptation to use these courts as coercive vehicles through which to simply expedite case dispositions without any meaningful attention being paid to issues of civil rights, civil liberties, dignity and autonomy. This warning underscores the importance of the responsibility on mental health court judges and administrators to consider the impact of the CRPD – and international human rights law, in general -- on the operation of these courts, especially regarding issues of potentially coercive treatment.
It is time to restructure the dialogue about mental health courts and to (1) consider whether the development of such courts will finally allow us to move away from society’s predominant opinion that mental illness reflects a defect of morality or will, (2) take seriously the potential ameliorative impact of such courts on the ultimate disposition of cases involving criminal defendants with mental disabilities, (3) assess the impact that such courts might have on the extent to which individuals are treated with dignity in the court process.
I remain a strong supporter of mental health courts but believe firmly that supporters must do a better job of responding to some of the critiques of the courts (especially those coming from what I will somewhat-awkwardly characterize as the “political left.” As I will discuss below, the critiques that, I believe, have the most merit are these: that these courts may provide “false hope” to those who come before them, and that the success of the courts is overly-dependent on the personal charisma of the presiding judge.

I believe that our “culture of blame” still infects the entire criminal justice process, and that it continues to demonize persons with mental illness for their status. Until this is remediated, there can be no assurances that mental health courts -- or any other such potentially-ameliorative alternative – will be ultimately “successful” (however we choose to define that term). 

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. All of this discussion, while important and helpful, bypasses the critical issue that must be at the heart of the ultimate inquiry here: do such courts provide additional dignity to the criminal justice process or do they detract from the measure of dignity provided? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant. 

My paper proceeds in this manner. In Part I, I discuss the underpinnings of therapeutic jurisprudence. In Part II, I briefly discuss some of the universal factors that contaminate mental disability law in all nations. In Part III, I look at the new Convention and its general implications for the future of mental disability law, with a special focus on the importance of dignity considerations in a Convention context. In Part IV, I first consider the role of blame in the criminal justice system, and then briefly outline the history of the development of mental health courts and consider some of the more serious criticisms of those courts. I conclude by offering some suggestions as to how therapeutic jurisprudence can best inform a MHC model that can be counted on to enforce international human rights and promote dignity.