In recent years, the law enforcement community has expressed growing concern about incarcerating large numbers of people with mental illnesses. A very significant percentage of these individuals find themselves incarcerated as a result of mental health service system failures, including a lack of community-based services such as supportive housing, crisis services, and assertive community treatment. It is vital for state and local governments to expand access to community based mental health services and to provide alternatives to incarceration, including diverting people with mental illness to community services where they can find the treatment and support they have previously lacked.

The response of some jurisdictions has been to establish specialized courts to process certain criminal cases involving people with mental illnesses. These specialty courts — often called mental health courts — attempt to connect individuals to services that help them remain in the community. Mental health courts do not create any new services and do not intervene before people are caught up in the criminal justice system.  Services provided at an earlier stage could prevent many encounters between people with mental illnesses and law enforcement, and many needless arrests and charges.

The Bazelon Center believes the best approach to avoiding the criminalization of people with mental illnesses is not to create new courts, but to ensure timely access to the services that are crucial to people with serious mental illness. Mental health courts may divert individuals from jail or prison, but they do not solve the systemic problems that cause people with mental illnesses to be arrested and incarcerated in disproportionate numbers. These courts also present some unintended negative consequences.

For example, because mental health courts can leverage access to needed community services, they can inadvertently create incentives to arrest people to get them into services. Many also require a guilty plea in order for a person to receive services; convictions based on such pleas follow a person throughout life, making it more difficult to get housing and jobs.  These courts also lead mental health authorities to prioritize scarce resources to be delivered at a late stage, as part of a system that involves coercion.

Specialty mental health courts, when used on a limited basis for more serious offenses, can sometimes play a productive role in a more expansive strategy to break the cycle of mental health service system failures and resulting incarceration.


The Role of Mental Health Courts in System Reform (PDF)

  • This report examines efforts in a growing number of concerned communities to respond to the immediate problem by establishing mental health courts to promote court-imposed treatment as a substitute for incarceration. It presents issues that arise when a mental health court is being contemplated-issues that apply, for the most part, to all courts because all courts share an obligation under the Americans with Disabilities Act (“ADA”) to accommodate individuals with mental illnesses.

The Role of Specialty Mental Health Courts in Meeting the Needs of Juvenile Offenders (PDF)

  • This report helps inform an ongoing debate about the wisdom of such specialty courts for youth. Juvenile mental health courts raise many of the same concerns posed by similar adult courts, such as collateral consequences of court involvement, lengthier and more intense court oversight than youth in traditional juvenile court, and the requirement that they be arrested in order to receive necessary mental health treatment. Such courts raise additional concerns, however, because of the nature of the juvenile justice system and the young people who are subject to its jurisdiction.