State Bar says NY needs to reduce reliance on prisons and courts when treating mental illness

May 31, 2023 Rob Abruzzese

Judge Matthew D'Emic, administrative judge for the Kings County Supreme Court, Criminal Term, presides over Brooklyn's Mental Health Court, a crucial intersection of criminal justice and mental health services. Photo: Rob Abruzzese/Eagle.

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Despite efforts from the federal government and the State over the years to increase mental health care access, the issue remains troubling in New York to the point where the court and prison systems often become de facto mental health providers, a role that they are ill-equipped to fulfill effectively or efficiently.

The New York State Bar Association (NYSBA) is calling for a systemic shift in how the legal system handles individuals with mental illness, as laid out in a report approved by its Executive Committee.

The report emphasizes the necessity of moving away from prisons and courts as the primary means of dealing with mental health issues.

The Task Force on Mental Health and Trauma Informed Representation, the group responsible for the report, detailed how individuals facing mental health crises often become ensnared in the legal system. The association’s governing body, the House of Delegates, is slated to discuss the report on June 10 at its meeting in Cooperstown.

“This critical report delves into every facet of legal practice intersecting with the mental health community,” NYSBA President Sherry Levin Wallach said. Wallach, who assembled the task force, added, “I am proud that our work will continue to help make sure that all people living with mental illnesses and trauma are able to access support and resources to assist them in living a full life and are treated with dignity and respect. Our goal is to make sure that the stigma of living with mental illness is erased.”

Key recommendations in the report include diverting individuals in a mental health crisis away from imprisonment, offering more comprehensive implicit bias training to judges and juries, and educating lawyers and law students on trauma-informed best practices. The report also suggests an increase in funding for beds in treatment centers and data collection on individuals with mental illness within the justice system.

Furthermore, the NYSBA is urged to establish a permanent standing committee on mental health.

The report advocates for amendments to Article 81 in New York State’s Mental Hygiene Law, which would explicitly incorporate supported decision-making principles. These principles enable trusted individuals to assist those with mental disabilities and/or guardianship needs, with the objective of preserving independence and autonomy through the least restrictive means possible.

A notable call is for a “seamless system” bridging the mental health, criminal justice, and civil justice systems. The envisioned model would allow individuals to access a full range of services regardless of their entry point, replacing the need to navigate separate and complex programs.

“Over the past year, I have been fortunate to collaborate with many of New York State’s leading experts in law and behavioral health,” said Joseph A. Glazer, co-chair of the task force and Westchester County deputy commissioner, Department of Community Mental Health. He continued, “As we aim for endorsement by the full bar association, I am grateful for the commitment and scrutiny of those involved in this work, and my colleagues who will use this as a tool to make our system more just for those living with behavioral health needs.”

Brooklyn’s Mental Health Courts

A particularly noteworthy development over the last twenty years in the intersection of mental health and the justice system is the rise of mental health courts, which represent a creative attempt to better respond to the needs of individuals with mental illnesses who come into contact with the criminal justice system.

These courts were introduced to bridge the gap between mental health treatment and criminal justice, in recognition of the fact that traditional justice system responses often fail to adequately address the needs and circumstances of this population.

Mental health courts are specialized court programs designed to divert individuals with mental illnesses who have been charged with a crime into judicially supervised, community-based treatment.

The first mental health court was established in Broward County, Florida, in 1997, and many others have followed, including one in Brooklyn, the first in New York, which opened in 2002. These courts employ the principles of therapeutic jurisprudence, which suggests that the power of the court and the threat of traditional prosecution can be used to motivate individuals to stay in treatment and out of trouble.

The typical approach of a mental health court includes a specialized court docket, which employs a problem-solving approach as opposed to traditional court procedures, judicially supervised, community-based treatment plans designed by mental health professionals, regular status hearings to update the judge on the defendant’s progress, and detailed definitions of success or failure. The court teams include various stakeholders such as mental health professionals, prosecutors, defense attorneys, and probation officers.