An Effective Model for Misdemeanor Courts and the Mentally ...

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An Effective Model for Misdemeanor Courts and the
Mentally Ill Defendant

by The Honorable Joseph A. Migliozzi Jr.

In 2012, approximately 770,000 felony competency issue and requests a court- will house more mentally ill inmates
criminal offenses were committed by ordered evaluation. over longer periods. Our jails have, effec-
people diagnosed with a mental illness.1 tively, become the new state institutions
This figure does not account for the There are many cases like Jerry’s for the mentally ill. Because jail cells
thousands of minor criminal infractions that appear before misdemeanor courts were never designed to care for the men-
or misdemeanors committed each day in this country each day. In 2011, the tally ill and because jail personnel are
by people afflicted with similar, if not General District Court in Norfolk not trained mental health caretakers, the
more severe, mental illnesses. Consider became one of only three misdemeanor result is often no different than what was
the hypothetical story of Jerry. courts in Virginia3 to redirect all defen- once considered cruel and inhumane.
dants with mental illnesses to a mental
Jerry is a 45-year-old, Axis 12, para- health docket (MHD). This article iden- Fortunately, some progress has been
noid schizophrenic who lives alone in an tifies a model for misdemeanor courts to made to change this bleak situation. The
apartment, almost entirely funded by his organize dockets exclusively for people first nationally recognized Mental Health
monthly social security disability with mental health disorders in an effi- Court began in Broward County Florida
income. He has, in the past, worked with cient, cost-effective manner that utilizes in 1997. Subsequently, President Clinton
a local community services caseworker services that typically already exist in signed into law the Mental Health Courts
to assist with the administration of his every urban jurisdiction. Bill10 in 2000 to establish a national
medication and his adjustment into mental health court system, offering
community-based housing. Summary of Mental Health Courts and nonviolent, felony offenders with severe
Their Development in Virginia mental illnesses an opportunity to par-
Jerry has lived in a residential, multi- As a result of de-institutionalizing the ticipate in a voluntary, supportive, and
unit apartment building for three years. mentally ill across the nation in the structured program designed to transi-
He has deliberately rigged his apartment 1960s, many of those individuals now tion the inmate back into society.
with devices to make him feel safe, but aimlessly wander city streets, sleep in
each apparatus constitutes a separate fire parks, and often end up in local jails.4 In The advent of these “problem-solv-
code violation that his landlord has 1999, the National Institute of Justice ing” courts helped to alleviate some of
repeatedly insisted he remove. Finally, estimated that “of the 10 million people the burdens placed on the criminal jus-
during a regular city code inspection of arrested and admitted to jail each year, tice system, but most of the mentally-ill
the eight-unit apartment building, Jerry’s 13% suffer from severe mental disabili- were still falling through the cracks for
unit is cited for ten violations, all of which ties,”5 contrasted with only “2% in the one reason: Most people in need were
are class-one misdemeanors charged general population”6 who suffer mental committing misdemeanors, not felonies.
directly to the tenant and each carrying illness. In 2006, a Special Report by the Consequently, some states started spe-
up to twelve months in jail. Jerry panics, Bureau of Justice Statistics estimated that cialty misdemeanor dockets to identify
but refuses to make any changes. When more than 17 percent of the national and assist the mentally ill in local jails.
approached by law-enforcement officers prison population was mentally ill.7 Of Unlike in mental health courts, a misde-
who attempt to execute service of the this population, 10 percent were incar- meanor inmate does not volunteer to
notice of violations, Jerry causes a public cerated in state prisons, 1 percent in fed- participate in the program. During his
disturbance in the building and tem- eral prisons and approximately 6 percent intake process or during his stay in jail,
porarily barricades himself in his apart- in local jails.8 In 2012, New York City an inmate who suffers a mental illness
ment. He is subsequently apprehended reported that 24 percent of its prison may be diverted to the MHD by the court
with minor force, taken directly to a population had mental health needs, or upon motion of a lawyer. Once on the
magistrate where he is charged with an with the largest segment of that popula- docket, the case is treated like any other
additional offense of obstructing justice tion under the age of 25.9 with respect to ensuring a timely and
and held without bond. At his arraign- appropriate adjudication of the offenses
ment, Jerry is appointed an attorney The younger age of inmates coupled charged — with the exception that par-
who immediately recognizes a potential with recidivism suggests that local jails ticular attention is given to the mental-

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health diagnoses. The court may order local community services board, the phrenia and bi-polar disorders, yet was
an evaluation for competency, assure PACT team (Program of Assertive capable of understanding the nature and
that previously prescribed medications Community Treatment), the jail’s mental consequences of his behavior and the
are available, and order access to a com- health service provider, the Veterans role of the court. Jerry had a life-long
munity-based support service to assist Administration, the public defender’s history of mental illness, but as long as
the transition of the mentally ill inmate office, the commonwealth attorney’s he maintained his anti-psychotic med-
through the criminal justice system. office, and various other agencies that ications he was able to function inde-
provide independent services through- pendently in society. Thus, the
The Mental Health Docket out the city. A written docket is prepared evaluating psychologist determined that
Beginning in September 2011, the Norfolk two weeks in advance, listing all defen- Jerry was competent to stand trial for the
MHD has been called to order at 2:00 dants who are pending dispositions and ten misdemeanor fire-code violations.15
p.m. on the first and third Wednesday of will be in need of services. Each entity
each month. Defendants who meet the represented at the MHD recognizes that After reviewing the report with
unique criteria to be placed on this simply allotting four hours each month Jerry and discussing with him the facts
docket11 no longer languish in jail await- to attend this docket not only serves the of the case, Jerry’s court-appointed
ing medications, psychiatric treatment, needs of the mentally ill and the com- attorney proposed to the prosecutor and
or sentencing for their misdemeanor munity, but also furthers their own fun- the court that a finding under advise-
violations. Similarly, the community is damental mission of service. ment was appropriate, allowing Jerry to
assured that the revolving door of recidi- be released on bail and giving him an
vism among mentally ill defendants is Most importantly, the MHD pro- opportunity to remedy the violations
deliberately monitored by the court and vides an isolated and dignified opportu- and obtain the necessary medical atten-
by the various agencies that serve the nity for defendants’ family members to tion to deal with his diagnosis. Jerry
judicial system. be present and to offer background would be required to maintain regular
information and suggestions to the court meetings with the community services
Making such a docket work requires in an effort to determine an appropriate board, where his medication and psychi-
the cooperation of several large entities. sentencing disposition. In fact, it can be atric treatment could be monitored. Any
The relationship between the sheriff’s said that family members in attendance violations of this proposal would result
department, which operates the local provide the greatest service to the MHD in an immediate violation hearing on
jail, and the court is most critical. For and can do so without the embarrass- the MHD, a potential revocation of
years, jail officials recognized that their ment of seeing their children or siblings Jerry’s bond status and a conviction of
cells were becoming long-term holding paraded before a packed courtroom of most, if not all the charges pending
facilities for the mentally ill, draining less sensitive citizens. against him.
valuable resources needed for other
inmates.12 Similarly, the court noticed In the end, each representative is Considering the nature of the
that with a random rotation of judges, present to provide recommendations or charges in this hypothetical, the court
no time limits for the return of compe- options to the court. The court is then accepted Jerry’s plea of guilty to all
tency evaluations, and little order to the tasked, as in any other case, to resolve charges and deferred a final disposition
array of mental health services available charges consistent with the law and to for six months. Twice he returned to
within the community, this specific seg- discourage similar future behavior court during his six-month probationary
ment of the jail population may have through its sentencing dispositions. period. Each time, he was reported as
been held in custody for longer peri- However, in these unique cases, the taking too long to address the fire code
ods.13 Thus, a few short organizational court recognizes the additional burden violations. Yet, with the encouragement
meetings between jail representatives of providing an incentive for defendants of his case-worker, the city attorney and
and the Norfolk General District Court to continue their prescribed medication the court, Jerry finally brought his home
resulted with the identification of a clear regimen, maintain a stable residence, and into conformance with city code, was
solution — to exercise the statutory find the necessary out-patient services able to maintain his residence, obtained
authority already provided to the chief before returning to their communities. supervision for his medication intake,
judge to organize the docket in such a and his case was successfully closed. Jerry
manner that “allows the court to operate By the time Jerry first appeared served a total of fourteen days in jail.
efficiently.”14 before the MHD, two weeks after his ini-
tial arrest and arraignment, a compe- Conclusion
At each MHD, at least one represen- tency evaluation was already prepared In 1968, Virginia closed state institutions
tative is present from the adult commu- and provided to defense counsel and the for the mentally ill and by 1976 there
nity supervision office (probation), the court for review. Jerry was diagnosed as remained only 5,967 in-patient beds for
suffering from severe paranoid schizo-

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mentally ill patients who required 5 National Institute of Mental Health. written competency evaluation is now
restoration or civil commitments.16 As of 1995. Mental Illness in America: The fourteen days.
2011, that number was reduced to only National Institute of Mental Health 14 “Subject to such rules as may be estab-
1,252 beds.17 With an overall state popu- Agenda. (Bethesda, MD 1995) lished pursuant to § 16.1-69.32, the
lation of 7.8 million that same year, chief judge may establish special divi-
262,000 of whom suffered from serious 6 National Institute of Justice. The sions of any general district court when
mental health issues and often commit- American with Disabilities Act and the work of the court may be more effi-
ting minor criminal offenses, it’s not dif- Criminal Justice: Mental Disabilities, ciently handled thereby…” Va. Code
ficult to understand why local jails have U.S. Government Printing Office § 16.1-69.35(4)
involuntarily assumed the role of health- (Washington, DC 1995). 15 Had Jerry been deemed not-competent
care provider. Yet, as demonstrated in to stand trial, then the court would have
Norfolk and increasingly in misde- 7 Doris J. James and Doris E. Glaze, to consider restoring him to compe-
meanor courts nationwide, specialty Mental Health Problems of Prison and tency. This could be accomplished at a
mental health dockets can provide a Jail Inmates, Bureau of Justice Statistics state hospital, which would require that
meaningful and substantial intervention Special Report, NCJ 213600, Sept 2006. Jerry be taken into custody until a bed
to this unfortunate trend. was made available for him. Or, if
8 Id. appropriate, his restoration could be
(The author recognizes the contribu- 9 Justice Center, the Council of State accomplished out of custody through a
tions of Regent University law students case worker at the community services
Diana Galinis and Wesley Pilon, who Governments, Improving Outcomes for board. Prior to the introduction of the
served as judicial interns for the Norfolk people with Mental Illnesses Involved MHD in Norfolk, people held in cus-
General District Court in 2013.) with New York City’s Criminal Court tody awaiting restoration at a state hos-
and Correction Systems, December 2012. pital spent on average 150 days in jail
Endnotes: 10 S. 2639, H.R. Bill 5091, 106th Cong. before being transported to the hospital.
1 Bureau of Census. U. S. Commerce (2000) (enacted). Since the MHD, that time has been
11 A defendant may be placed on the reduced to less than 80 days.
Department, The Statistical Databook. MHD by order of any judge who deter- 16 Nat’l Alliance on Mental Illness
The National Abstract (Washington, mines there to be sufficient history of (NAMI), FACT SHEET: Mental Illness
DC: Government Printing Office, mental illness to warrant the commu- in Virginia’s Adult Population,
2012)(reporting 11 B arrests), Gary nity-based services made available by http://www.namivirginia.org.
Cordner, The Problem of People with this docket. Additionally, any defendant 17 Id.
Mental Illness, Center for Problem who is evaluated for competency or san-
Oriented Policy, Guide #40 -2006, 2013 ity is automatically referred to the Joseph A. Migliozzi Jr. was appointed to
POP Conference( reporting 7 percent of docket until such time as it is deter- the Norfolk General District Court
all people arrested are mentally ill). mined that these issues no longer exist bench in 2009. Beginning in 2002, he
Therefore, 7 percent of 11B is 770,000 or until the defendant is restored to served as the southeastern district’s
mentally ill people arrested. competency. capital defender, representing people
2 Diagnostic and Statistical Manual of 12 At an average cost of $49 per day to charged in death-penalty-eligible cases.
Mental Disorders, Code 310.0, 4th house any inmate in the Hampton
Edition (DSM-IV), 1994 (defining Axis Roads area of Virginia, the MHD saves
1 as the top-level of the DSM multi- the state an estimated $3,700 per indi-
axial system of diagnosis, representing vidual. With over 300 inmates processed
acute symptoms that need treatment. through the MHD, taxpayers have saved
Such symptoms include major depres- over $1.1 million in initial processing
sive episodes, schizophrenic episodes, alone. Extrapolating these numbers
and panic attacks.) using the National Institute of Justice
3 Petersburg, VA in April 2011 and and the Bureau of Justice Statistics, if 17
Richmond, VA in May 2011 started percent of the 10 million people
mental health dockets. arrested are mentally ill, and housing
4 In 2010, The U.S. Department of them in jail costs $49 per day (small
Housing and Urban Development esti- towns would be lower and big cities
mated that on any given night in higher), this is a savings of $83.3 million
America, over 400,000 individuals in in one year.
America are homeless. U.S. Department 13 Prior to the implementation of the
of Urban Development, 2010 Annual MHD in Norfolk General District
Homeless Assessment Report Court, the average wait for a compe-
(AHAR)(Washington, DC 2010). tency evaluation was ninety days,
regardless of the nature of the offense.
This was often the result of a system
overwhelmed by the needs of this
inmate population. With the advent of
the MHD, the maximum wait for a

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