improving the path to justice for the mentally ill

Improving the Path to Justice for the Mentally Ill

A Report of the Work of the Fair Justice Mental Health & the Criminal Justice System Subcommittee

Kent Batty, Chairman

AADCP Problem Solving Court ConferencePrescott, Arizona

2018

Why should the courts lead on mental health issues?

Courts are the ideal organizing force to bring people together to develop better protocols and devise solutions.

Source: Conference of State Court Administrators: “Decriminalization of Mental Illness: Fixing a Broken System 2016-2017 Policy Paper”


Persons with mental illness who enter the justice system have a

higher rate of recidivism!

Source: Conference of State Court Administrators: “Decriminalization of Mental Illness: Fixing a Broken System 2016-2017 Policy Paper”


40% of adults who experience serious mental illness will come into contact with the criminal justice system at some point in their lives.

Source: National Alliance on Mental Illness (NAMI)


Each year, roughly 2.2 million people who need immediate mental health treatment are arrested and booked into jails nationwide.

Source: Judge Steve Leifman, Statement to Congressional subcommittee on Oversight and Investigations of the Energy

& Commerce Committee

High Cost of Failing to Address this Crisis

Miami-Dade County, Florida

97 high service users with SMI cost taxpayers $13 million in criminal justice costs over a five-year period.

Philadelphia

438 chronically homeless individuals with SMI cost the city $12 million annually in public service costs, 60% of the total service costs for all homeless individuals.

New York City

800 frequent inmates at the Riker’s Island jail cost the city $129 million from 2008–2014; 152 of these high users had a diagnosed SMI.

Source: Treatment Advocacy Center; “A Crisis in Search of Data: The Revolving Door of Seriously Mentally Ill in Super Utilization” 2017

Juveniles Designated as SMI

2012 3.8%

2016 50%

Sources: ADJC https://adjc.az.gov/sites/default/files/media/annualreport16.pdf

https://adjc.az.gov/sites/default/files/media/annualreport16.pdf

Arizona Adult Corrections

Approximately 27% of the prison population is identified as having mental health issues

16% of prisoners with mental health issues are also designated as SMI.

Source: ADOC “Corrections at a Glance” Dec. 2017

Maricopa County Jail

Approximately 5% of all people booked into theMaricopa County jails came with a preexisting SMIdesignation.

Source: Maricopa County Correction Health Services

Patti TobiasNational Center for State Courts

A personal perspective on a family’s struggle to navigate the justice system.

Establishing the Fair Justice Task Force

• Growing national recognition that too many poor people stay in jail for too long.

• Supreme Court’s “Strategic Agenda” incorporated this concern.

• Many Arizonans sit in jail because they can’t afford to post bail.

• Defendants should not remain in custody only because they are poor.

• Money bail does not improve chances of defendant returning to court or increase community safety from dangerous defendants.


Context

• 4th highest poverty rate in the nation.

• Above average unemployment rate.

• Most people living in poverty are the “working poor”.


Goal

• Justice system must take better account of the impact of financial sanctions on the financially vulnerable

• Focus on revenue generation must not impact the overarching principle of “Fair Justice for All”

Fair Justice For All Task Force

“People should not be jailed unnecessarily or because they are poor.”

Administrative Order No. 2016-16


• 7 judges• 4 court administrators• 5 AOC representatives• 3 civil leaders• 3 prosecutors and public defenders• 2 law enforcement representatives• 1 court clerk


Recommendations by the Task Force:• Coordinate with local RBHAs to assist the court to identify defendants with mental diagnoses.

• Review mental health competency statutes for expediting proceedings in misdemeanor cases.

• Bring together stakeholders in larger jurisdictions to adopt protocols for addressing people with mental health issues who come to court.

• Consider specialty courts and other resources to address a mentally ill defendant’s treatment and service needs, as well as risk to the community.

Fair Justice Task Force createsSubcommittee to look atmental health issues

Subcommittee on Mental Health & the Criminal Justice System

“The handling of cases involving individuals with mental health issues is a challenge for all parts of the criminal justice system.”

“Special needs offenders should be addressed appropriately.”

Source: Report and Recommendations of the Task Force on Fair Justice for All

Task Force Creates 24-Member Subcommittee

Comprised of subject matter experts in the criminal justice and mental health arenas.

Prosecutors

Defense attorneys

Judges and court personnel

Clinicians

Behavioral Health Professionals

Mental Health Advocates

Subcommittee’s Subject Matter Experts

Kent Batty, ChairmanFormer Pima County Court Administrator

• Ms. Susan Alameda, Treatment Specialist, Probation, Administrative Office of the Courts

• Dr. Tommy K. Begay, Clinical Assistant, Professor, U of A College of Medicine

• Mr. John Belatti, Mesa City Prosecutor

• Ms. Mary Lou Brncik, Director and Founder, David’s Hope Services

• Ms. Kelsey Commisso, Phoenix Detective

• Ms. India Davis, Program Manager, Pima County Behavioral Health

• Mr. Jim Dunn, Executive Director/CEO, National Alliance on Mental Illness

• Ms. Vicki Hill, Phoenix City Prosecutor

• Ms. Josephine Jones, Deputy Director, Maricopa Office of the Public Advocate

• Honorable Joseph Mikitish, Judge, Superior Court in Maricopa County

• Dr. Dawn Noggle, Mental Health Director, Maricopa County Correctional Health Services

• Dr. Carol Olson, Director, Desert Vista Hospital

• Ms. Nancy Rodriguez, Deputy Director, Maricopa County Clerk of Superior Court

• Dr. Michael Schafer, Professor and Director, ASU Center for Applied Behavioral Health

Subcommittee’s Subject Matter Experts

• Honorable Susan Shetter, Judge, Tucson City Mental Health Court

• Honorable Barbara Spencer, Commissioner, Superior Court in Maricopa County

• Honorable Christopher Staring, Judge, Court of Appeals, Division II

• Ms. Lisa Surhio, Assistant Public Defender, Pima County Public Defender’s Office

• Ms. MaryEllen Sheppard, Assistant County Manager Maricopa County

• Detective Sabrina Taylor, Regional CIT Coordinator, Phoenix Police Department

• Mr. Paul Thomas, Court Administrator, Mesa Municipal Court

• Ms. Juli Warzynski, Deputy County Attorney, Maricopa County Attorney’s Office

• Ms. Danna Whiting, Administrator, Pima County Office of Behavioral Health

Charge to the Subcommittee

• Recommend rules and procedures for limited jurisdiction court competency hearings.

• Determine if the current standard of mandating court-ordered treatment should be altered to allow for earlier intervention.

• Make recommendations for courts to more effectively handle individuals in the justice system who have mental health issues.

• Develop a Model Protocol Guide for Presiding Judges to use to implement the Task Force’s recommendations.

Improve Delivery of Justice when Local Courts Conduct Rule 11

Hearings

Develop model Administrative Order for PJs to use to authorize local courts to conduct Rule 11 criminal competency hearings.Develop policies and procedures for local courts to follow when conducting Rule 11 hearings.Draft a Petition to change Rule 11 to allow local courts to decide whether to order a defendant to undergo competency restoration instead of transferring the case to the superior court.Identify areas for case management improvement.

Sharing of Rule 11 documents.Notification of defendant’s “prohibited possessor” status.Conduct competency evaluations at the courthouse to reduce FTA rate.

The Honorable Elizabeth FinnGlendale City Court

A review of the Glendale City Court’sRule 11 competency hearing pilot program.

Elizabeth R. Finn, Presiding Judge, Glendale City Court

April, 2018

LIMITED JURISDICTION RULE 11 PROCEEDINGS

Rule 11 of the Rules of Criminal Procedure

•Cannot be tried for criminal offense if:

•As the result of mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense

Rule 11 of Rules of Criminal Procedure

Mental illness, defect or disability means a psychiatric or neurological disorder that is evidenced by behavioral or emotional symptoms, including congenital mental conditions, conditions resulting from injury or disease and developmental disabilities

Glendale Rule 11 Pilot

•Doctors see defendants at the courthouse ($330 per doctor)

•Proceedings are held at the courthouse•Has reduced failure to appear rate for seeing the doctors ($150 no show fee)

•Reduced the time from the filing of the motion to disposition from 105 days to 42 days

Do You Need to Preside Over Your Rule 11’s

•How far away are:•The doctors•The attorneys•The Superior Court courthouse

•Are you experiencing “no show fees”from missed doctor appointments

•Are you having your Rule 11 cases go to warrant status, especially when you know the person is still in your community?

•Do you have restoration funds?

Where Things Occur

•Evaluations by doctors at your courthouse•Easier for doctors to appear•Safer for doctors: defendants are usually screened by security

•Defendants seem to be able to find local courthouse

•Hearings at your courthouse•Usually closer for attorneys•Closer for defendants •Can use “Skype” or something similar for someone who cannot appear in person

To Preside Over Your Own Rule 11 Cases

• In concert with your Superior Court and the Clerk of the Superior Court, decide:• If you are using your case numbers or theirs• If using your own case number and case management

system, how will Superior Court obtain access to your sealed doctors’ reports

• How you will obtain access to Superior Court’s sealed records from prior Rule 11 matters

• Will you be e-filing your minute entries with the Clerk of the Court

• Will your minute entries display on the Clerk of the Court’s website or will you attempt to display on your website or not at all

Initially

• Trained with Superior Court judicial officer and clerks with Clerk of the Court

• Used Superior Court case numbers

• E-filed minute entries with Clerk of the Court

• Had access to Superior Court’s case management system• Searched for prior Rule 11 cases• Obtained prior doctors’ reports to be forwarded to defense counsel

for new doctors• Clerk of Court back scanned older reports for us

Pilot

•Superior Court•Monitored our cases•Notified NICS for prohibited possessor status

•Issued our warrants

NICS

•How is NICS going to be notified if a defendant is found incompetent making the person a prohibited possessor

•If using Superior Court case numbers, a Superior Court person can notify

•LJ AJACS: NICS notification created

•Other courts: Need to register with LEEP

Guardian Ad Litem

•A doctor’s report may indicate a possible Rule 11 defendant needs a guardian or is danger to self or others

•You must identify who in your county assigns Guardian Ad Litems

•You will appoint the Guardian Ad Litem to do the investigation and report back to your court

•Any other proceedings concerning a guardian will be handled in Superior Court

Doctors

•They do not all do the same reports•Talk to Superior Court staff to determine the doctors who tend to submit complete reports in a timely manner

•Schedule the doctors at the Court before you appoint them

•When appointing the doctors, set the Rule 11 hearing

•We require all doctors to submit reports within 10 days of the evaluation

Training

Superior Court

•Clerks•Need to be trained by the Clerk of the Court for minute entries

•Judges•Need to be trained by Superior Court judicial officer on presiding over Rule 11 proceedings

Court Requirements

•Procedure•How are you obtaining prior Rule 11 doctor’s reports?

•Where are you storing sealed doctor’s reports?•Mail doctor’s reports to attorney representing the defendant. Attorney has responsibility for submitting departmental reports, prior Rule 11 doctor’s reports etc.

•When your doctor’s reports are received, send to defense counsel for redaction

Hearings

•Helpful if minute entry already completed and judge reads from minute entry using it as a script

•Should be recorded•Need to know about restoration funds before hearing

•Most often, prosecutor dismisses after judge finds defendant incompetent

Additional Work of the Subcommittee

Provide More Training and Tools for Judges

Initiate development of a “Protocol Guide” for courts to use toimprove the justice system’s response to persons with serious or persistent mental health issues.

AOC working with the NCSC to develop this Guide

Recommend additional training for judges on the Sequential Intercept Model (SIM) and other tools that can help identify persons with behavioral health needs and direct them to appropriate services when possible.

Additional Work of the Subcommittee

Better delivery of justice by the courts

Recommend AOC develop evidence-based best practices for Rule 11 competency and RTC programs.

Provide information on the Title 36 civil commitment process in web and paper formats.

Recommend the definition of “mental disorder” be amended to include cognitive disabilities, conditions resulting from injury, and co-occurring substance use disorders which co-occur with a mental disorder.

Sequential Intercept Model

The SIM identifies 5 points where a person may be “intercepted”, connected to services, and diverted out of the

criminal justice system.

#1 Community Services / Law Enforcement#2 Arrest / Initial Detention#3 Jail / Courts (13 mental health courts in Arizona)#4 Reentry#5 Community Corrections

Applied Sequential Intercept Model

Vision:A community that no

longer needs jails and courts to serve as a provider of mental health treatment

#1 Pre-Booking Intercepts

Crisis Intervention Teams Community based system of care

#2 Post Booking Intercepts

Coordinated screening at time of booking

#3 Court/Jail Intercepts

In-jail specialized treatmentTherapeutic Courts (Mental Health Court) Community/Jail-based Competency Restoration Services

#4 Re-Entry Intercepts

Stable housing Peer support AHCCCS enrollment

#5 Post-Release Intercepts

Specialized Probation Stable housing Community based system of care

More Work to be DoneSubcommittee terminates May 2018

Will recommend Court create a new committee to address ongoing efforts to improve the civil and criminal justice systems for persons with mental illness.

improving the path to justice for the mentally ill

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