International Journal of Law and Psychiatry 33 (2010) 428439

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International Journal of Law and Psychiatry

Dealing with mentally ill domestic violence perpetrators: A therapeutic jurisprudence judicial model
Bruce J. Winick a, Richard Wiener a,, Anthony Castro b, Aryn Emmert c, Leah S. Georges a
a b c

University of Nebraska, United States Department of Psychiatry & Behavioral Sciences, University of Miami Miller School of Medicine, United States University of Miami School of Law, United States

a r t i c l e
Keywords: Domestic violence Problem solving court Descriptive process

i n f o

a b s t r a c t
People suffering from mental illness are increasingly referred to the domestic violence court. Yet the typical diversion programs available, including batterer's intervention programs, are inappropriate for those with serious mental illness. As a result, the Miami-Dade Domestic Violence Court has developed a new approach for dealing with this population that applies mental health court techniques in domestic violence court. This article will describe and discuss this pioneering model. It also will situate this model within the context of other problem-solving courts and discuss how the court uses principles and approaches of therapeutic jurisprudence. The paper presents some preliminary data that describe the social and legal characteristics of 20 defendants in the Domestic Violence Mental Health Court followed over a two year period between 2005 and 2007. 2010 Elsevier Ltd. All rights reserved.

1. Introduction Therapeutic jurisprudence (hereinafter TJ) is an interdisciplinary method of legal scholarship that aims to reform the law in an effort to improve the psychological and emotional well being of those affected by the legal process (Winick, 2000). By using tools of the behavioral sciences, this method assesses the therapeutic and counter-therapeutic consequences of the law, with the goal of increasing the former and decreasing the latter (Winick, 2000). The research that developed from this mental health approach to law has since created a foundation for hundreds of problem-solving courts that have emerged in the United States. Though varying in their specialization, each of these courts alters the traditional roles of lawyers and judges in the judicial process, and links them with probation ofcers, social workers, and other justice system partners to develop a treatment team for each individual offender. These teams combine their efforts and attempt to create a strategy that will internally motivate the offender and produce long-lasting effects (Winick, 2000). The hope is to eventually reduce the rate of recidivism, and make the term revolving door obsolete. This article is an examination of a pioneering specialized court that aims to use the methods of TJ to minimize criminal offenses. The Domestic Violence Mental Health Court (DVMHC), located in MiamiDade County, Florida, is a hybrid of both mental health and domestic

Copyright 2010 by Bruce J. Winick, Richard Wiener and Anthony Castro. Corresponding author. E-mail address: rwiener2@unl.edu (R. Wiener). 0160-2527/$ see front matter 2010 Elsevier Ltd. All rights reserved. doi:10.1016/j.ijlp.2010.09.013

violence courts, with the aim of treating the special problems presented by mentally ill domestic violence perpetrators. While both mental health courts and domestic violence courts are applications of TJ, domestic violence courts deviate somewhat from the traditional problem-solving court model. In mental health courts, the crimes are usually non-violent victimless acts. The system, therefore, takes a non-adversarial approach while working to rehabilitate the offender (Stefan & Winick, 2005). Domestic violence courts, on the other hand, serve offenders who commit violent acts, usually against a victim with whom they have an intimate relationship. These courts are therefore more adversarial and punishment-oriented, and have a zerotolerance policy with regard to recidivism (Winick, 2000). However, because these courts promote the rehabilitation of the abusers, and assist the victims in receiving the necessary treatment and related services, they are still an application of TJ principles (Winick, 2000). This article therefore explores not only the derivation of the court, but the challenges it faces in attempting to balance the policies of two competing models, while meeting both the victims and offenders needs. Part I analyzes the origin of the court, dating back to the rst drug treatment court. It continues by examining the distinct qualities of both the mental health and domestic violence courts, and assesses the various goals and models of each. Part II takes a closer look at the DVMHC and outlines the steps of the legal process these offenders endure. As such, it contrasts the legal status, procedures, and outcomes of offenders who take part in the Pre-trial Diversion program compared to those on probation, and those who undergo conditional release. In addition, this section evaluates the motivational techniques used by the various players in the system by assessing success stories of several offenders. While we acknowledge that these case studies are at an

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early unquantiable stage of research, the stories that they tell are, nonetheless, important rst steps in understanding the value and special challenges that are part of the DVMHC approach to domestic violence. Part III entails a retrospective study of cases of offenders who participated in DVMHC by comparing them to offenders who pled not guilty, and opted for trial. This study provides some initial data about the need for the DVMHC program and about the types of clients that the court serves. Most importantly, these preliminary data demonstrate the specic types of problems that offenders present in DVMHC in MiamiDade County, Florida. Finally, Part IV contains some concluding remarks concerning the necessity of future studies, as well as the impact of TJ as a blueprint for developing the DVMHC model. It also addresses some potential problems with the model, and offers suggestions concerning their avoidance or minimization. We propose that the future success of these clients will be, in part, a function of the motivation and emotional focus that court personnel and agency players apply in this nonconventional, TJ approach to the treatment of domestic violence offenders. 2. Origins of the Miami Dade Domestic Violence Mental Health Court In 2004, the Miami-Dade County domestic violence court, a misdemeanor DV court, initiated a novel judicial model for mentally ill individuals who commit acts of domestic violence. In part, this effort grew out of concern about the increasing number of mentally ill criminal defendants in the jails. Indeed, The Bureau of Justice Statistics has reported that 479,900 inmates of local jails had a mental health problem, representing 64% of jail inmates (James & Glaze, 2006). A subset of this population came to the attention of the Miami Domestic Violence Court. This population had been subject to an informal form of diversion since around 1994 (Judge White-Labora, personal communication, June 5, 2007). Jail overcrowding provided a new impetus for diversion. The program initiated in 2004 was a formalization of this previously informal process in an effort to divert this population from the jail. According to Judge Deborah White-Labora (personal communication, June 5, 2007), the principal architect of this new program, the court was based on a drug treatment court model and incorporated concepts of therapeutic jurisprudence (Hora, Schema, & Rosenthal, 1999). Drug treatment court, and a number of other innovative problem solving court models that it spawned, grew out of the recognition that traditional judicial models for dealing with people with a variety of psychosocial problems had failed (Hora et al., 1999). Individuals with these problems had recycled through the courts, leading to the conclusion that a new judicial approach was needed. These new models can be seen as applications of therapeutic jurisprudence (TJ) (Hora et al., 1999; Winick & Wexler, 2003). TJ is a eld of interdisciplinary legal scholarship that studies the impact of law and how the application of law impacts the psychological well being of those affected. It seeks to reshape law and legal processes to diminish laws anti-therapeutic effects and maximize its therapeutic potential (Winick & Wexler, 2003). TJ is the philosophic foundation for the hundreds of problem solving courts that have emerged since the early 1990s (Petrilla, 2007). 2.1. Drug treatment court The rst specialized drug treatment court was established in Miami-Dade County Florida in 1989 and since has spread across the country with more than 2300 such courts now in existence (National Drug Court Institute, 2009). Drug related arrests in the early 1980s threatened to overwhelm the legal system, and traditional judicial approaches had little impact on drug supply or demand (Kondo, 2001; Roman et al., 2003). The purpose of these courts was to reduce recidivism and rehabilitate the offender through judicially supervised drug treatment in which the judge, functioning as a member of the treatment team, plays an important role in motivation and compli-

ance, thereby acting as a behavior change agent (Roman et al., 2003; Winick & Wexler, 2003). Although there are a variety of models, they all seem to have 5 common elements: (1) immediate intervention, (2) a non-adversarial process, (3) intensive judge/offender interaction, (4) interdisciplinary team approach, and (5) clearly dened rules and goals, often specied in a behavioral contract (Watson, Hanrahan, Luchins, & Lurigio, 2001). Evaluation studies show that these programs have been highly successful in reducing recidivism (Belenko, 1998, 2001; United States Government Accountability Ofce, 2005). Drug courts provide closer, more comprehensive supervision and much more frequent drug testing and monitoring during the program than other forms of community supervision (Belenko, 1998; 2001). Drug use and criminal behavior are substantially reduced while offenders are participating in drug court and well after program completion (Belenko, 1998; 2001, United States Government Accountability Ofce, 2005). These courts coordinate the efforts of the judiciary, prosecution, defense bar, probation, law enforcement, mental health, social service, and treatment communities to actively and forcefully intervene and break the cycle of substance abuse, addiction, and crime (Huddleston et al., 2008). In addition, a number of studies have shown that drug treatment courts are a highly cost effective alternative to traditional courts because they decrease crime rates, criminal justice costs, and costs to victims (Huddleston et al., 2008). 2.2. Domestic Violence court The success of the drug treatment court has led to the development of other problem solving courts, including Domestic Violence Court, Mental Health Court, and Hybrid versions of these (Winick & Wexler, 2003). Currently there are over 300 Domestic Violence courts (Littel, 2003). Domestic Violence is unique in that it occurs between intimates rather than strangers, and the violence is typically progressive (Conference of Chief Justices and Conference of State Courts Administrators, 2000; Littel, 2003). Courts initially were hesitant to handle these cases because domestic violence was considered a private issue (Mazur & Aldrich, 2003). Some argued that it was a waste of resources to face this problem because most victims dropped the charges and went back into the arms of the accused batterer anyway (Mazur & Aldrich, 2003). In addition, police ofcers, overwhelmingly male, often did not take domestic violence seriously, and made arrests only in cases of serious violence (Conference of Chief Justices and Conference of State Courts Administrators, 2000; Winick, 2000). However, awareness of the extent and seriousness of domestic violence increased in the 1990s as reports at that time suggested that one million women are battered by an intimate partner annually (Kaye & Knipps, 2000) and that almost one-third of all female homicide victims in the United States were killed by their intimate partner (Catalano, 2007). Domestic Violence Courts are specialized courts dealing exclusively with intimate violence that combine criminal and civil jurisdiction, allowing both adjudication and punishment of offenders and the issuance of protective restraining orders and services to victims and their families (Conference of Chief Justices and Conference of State Courts Administrators, 2000; Winick, 2000). They seek to ensure batterer accountability through criminal punishment and encourage behavior change through batterers intervention programs that offenders are mandated or encouraged to participate in as a condition of bail, pretrial diversion, or probation (Jeremiah, 2010). The efcacy of Batterer's Intervention programs in preventing recidivism is in question (Littel, 2003). These courts increase coordination and continuity of case processing, information gathering, consistency of monitoring of perpetrators, and victim support (Sack, 2002). Domestic Violence courts represent a revolutionary change from the traditional criminal court model in that these specialized courts involve greater judicial and staff expertise and an

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extensive judicial collaboration with agencies and community based organizations (Sack, 2002). There is no single model for Domestic Violence court. In fact, there are many different models. One is a civil protection docket. Another is a criminal model, and a third is an integrated domestic violence court. Depending on the jurisdiction, any one of these models may be used, and there are often variations within these models themselves. Although there is diversity, a number of distinct models emerge from the available studies and commentary (Littel, 2003; Sack, 2002). In whatever model is used, there must be coordination across the courts to ensure consistent orders and proper provision of services (Littel, 2003). Some of these models consist of civil courts that lack criminal jurisdiction. They focus mainly on civil protection orders and deal with violations of such orders when they occur. The orders direct the abuser to refrain from assaulting or contacting the victim or engaging in certain acts such as going to the victims' workplace or the school attended by the victims' children (Littel, 2003). The courts treat violations as civil contempt (Sack, 2002). The primary concern of such civil domestic violence courts are promotion of victims' safety and connection of litigants to community services (Littel, 2003). Some jurisdictions use a criminal domestic violence court model. They lack civil restraining order authority, and are a part of the criminal court. They deal exclusively with domestic violence misdemeanor or felony cases (Littel, 2003). This criminal model emphasizes the importance of appropriate sanctions and monitoring of batterers (Littel, 2003). A third model is an integrated domestic violence court, which possesses both criminal and civil jurisdiction. Some such courts also have jurisdiction to deal with child support and divorce issues arising in the case (Littel, 2003). An emerging model is Unied Family Court, in which one judge handles all legal issues relating to the same family, including domestic violence, divorce and child support, delinquency, and dependency issues (Babb, 1998; Littel, 2003; Winick & Wexler, 2003). The Miami Domestic Violence Court has both civil and misdemeanor criminal jurisdiction, but takes no jurisdiction over other family issues. Felony domestic violence cases in Miami are adjudicated in the general criminal court. Like other problem solving courts, domestic violence court relies on an interdisciplinary team effort in which judges, attorneys, resource coordination staff, and treatment staff work together. Moreover, like other such courts, these involve judicial monitoring, the gathering of information about the defendant's compliance, offender accountability, and community outreach and education (Center for Court Innovation Research, 2003). There are, however, signicant differences between domestic violence courts and other problem solving courts (Center for Court Innovation Research, 2003; Sack, 2002) due largely to the fact that the perpetrators are violent, which is rarely the case in other specialized courts. A greater degree of caution and community protection therefore is required (Sack, 2002). As a result, these courts tend to be more adversarial than other problem solving courts, as they have no tolerance for recidivism. Compared to other problem solving courts, domestic violence courts place greater emphasis on victim protection and offender accountability than they do on offender rehabilitation (Center for Court Innovation Research, 2003). 2.3. Mental health court The rst mental health court was established in 1997 in Broward County, Florida, and today there are more than 110 across the country (Erickson, Campbell, & Lamberti, 2006; Stefan & Winick, 2005). Mental health courts are criminal courts with separate dockets exclusive to persons with mental illness whose purpose is to divert defendants from jail or prison into community mental health treatment and to monitor and to provide incentives for compliance

(Steadman, Davidson, & Brown, 2001). The goal of mental health court is to prevent criminalization and recidivism by diverting mentally ill individuals out of the criminal justice system and into mental health treatment (Stefan & Winick, 2005). It is an attempt to end the revolving door syndrome of persons with mental disorders who cycle frequently through the criminal justice system (Erickson et al., 2006). The hope is to improve psychiatric stability for the offender and improve public safety. Mental health courts typically are limited to misdemeanor cases, but felony mental health courts recently have emerged (Fisler, 2005; Redlich, Steadman, Petrilla, Monahan, & Griffen, 2005). The incentive for offenders to enter mental health treatment is diversion from their criminal charges (Erickson et al., 2006). Like other problem solving courts, they generally are informal and non-adversarial in nature (Redlich et al., 2005). As is the case with all problem solving courts, participation is voluntary and treatment compliance is monitored by the court (Erickson et al., 2006; Redlich et al., 2005; Stefan & Winick, 2005,). The efcacy of mental health courts have not been demonstrated empirically, although preliminary outcome data from some courts and anecdotal accounts indicate that these courts are somewhat successful in engaging participants in treatment and reducing recidivism (Boothroyd, Poythress, McGaha, & Petrila, 2003; Cosden, Ellens, Schnell, Yamini-Diouf, & Wolfe, 2003; Redlich, 2005; Trupin & Richards, 2003). Empirical work has begun in Broward County, where the rst mental health court was established and in other jurisdictions as well (Watson et al., 2001). The number of mentally ill individuals in the criminal justice system is disproportionately large and is growing (Erickson et al., 2006; James & Glaze, 2006). This is due to an increased likelihood of this population being arrested, the tightening of civil commitment criteria, the declining public hospital census, limited access to community services, lack of coordination and continuity of care, and negative public attitudes about people in the community with mental illness who commit nuisance offenses (Watson et al., 2001). Police training along the lines of the Memphis model diverts these mentally ill offenders out of the criminal justice system directly into treatment (Steadman, Deane, Borum, & Morrissey, 2000). But to the extent that these defendants are arrested and their offenses appear to be more of a product of their untreated mental illness than criminality, the mental health court model can be a helpful way of diverting them from the jails that are highly anti-therapeutic, motivating them to accept needed treatment and facilitating their receiving it in the community. 2.4. Hybrid problem solving courts In addition to the above problem solving court models, jurisdictions have experimented with a variety of hybrid models that combine the approaches and techniques of drug treatment court, domestic violence court, and mental health court. Thus, hybrid courts have brought together the approaches of two or more problem solving courts to deal with special populations with overlapping problems (Winick & Wexler, 2003; Wyatt, 2001). For example, juvenile dependency drug treatment court focuses on parents in child abuse and neglect cases who have substance abuse problems (Winick & Wexler, 2003). The domestic violence mental health court described here is just such a hybrid model, combining the approaches of mental health court with those of domestic violence court to deal with domestic violence perpetrators suffering from serious mental illness (Winick & Wexler, 2003). In our research, we could nd an account of only one such hybrid court, started in the spring of 1999 in Dallas, TX (Wyatt, 2001). The Dallas Court, also a domestic violence misdemeanor court, appears to be limited to probation cases. This court also differs from the Miami model in that the degree of judicial supervision is not as extensive as it is in Miami and instead the court refers mentally ill defendants to a program, known as the TIMA program, which attempts to ensure

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treatment compliance. The Miami model is broader, encompassing not only probation cases, but also pretrial diversion, in which prior to plea, defendants agree to participate in treatment programs and report to court periodically, and a conditional release program, a parallel program for defendants found incompetent to stand trial. The Miami hybrid court treats and/or prevents both mental health and domestic violence problems simultaneously in the hope of maintaining psychiatric well being.

3. The Miami-Dade Domestic Violence Mental Health Court (DVMHC) The Miami-Dade Domestic Violence Court, started in 1991, processes misdemeanor criminal cases, including battery and cases in which there is a violation of a restraining order (Judge WhiteLabora, personal communication, June 12, 2007). The DVMHC is a jail diversion program that seeks to divert arrested defendants with mental illness out of jail and into community treatment (Judge WhiteLabora, personal communication, June 12, 2007). In approximately January 2004, the court established a specialized mental health calendar. This represented a formalization of an informal mental health diversion program that the domestic violence court judges used, although unevenly, since soon after the court's inception. The judges noticed increased numbers of mentally ill domestic violence perpetrators who were housed in the jail coming to the attention of the court (Judge White-Labora, personal communication, June 12, 2007). They also became increasingly aware that the existing batterers' intervention program was inappropriate for this population in view of these individuals specialized psychiatric, housing, and supervision needs, as well as their needs for a more structured program than the batterers' intervention program provided. The standard program had offered 26 weeks of anger management, supervision by probation ofcers only, and no psychiatric follow-up care. Anger management groups were not structured to manage a population with serious mental illness. The lack of psychiatric treatment frustrated compliance with batterers' intervention programs, anger management programs, and similar efforts to rehabilitate domestic violence perpetrators. In addition, probation ofcers lacked training in working with individuals who have mental illness issues. Finally, the overcrowding of the local jail, particularly the increasing number of individuals with mental illness housed there, suggested the need for increased diversion of this population from the jail into mental health treatment. As a result of a judicial meeting in 2003, a plan emerged in which a lead judge, Judge White-Labora agreed to offer specialized mental health and related services to those in this population and dismiss charges upon successful completion of a pretrial diversion program. After some changes in political administrations in Florida and accompanying changes in mental health court jurisprudence, the current model follows closely the result of the 2003 conference. An overwhelming number of the DVMHC cases involve a misdemeanor battery charge or violation of a civil injunction, which itself is a misdemeanor (Judge White-Labora, personal communication, June 6, 2007). In either case, the family or signicant other will have experienced a period of domestic violence that has gone unreported. This behavior may have escalated to the point that the family or signicant other seeks judicial assistance in the form of a restraining order, a civil remedy designed to prevent future violence. The complainant les a petition under oath at the courthouse and on the same day, a judge issues a restraining order ex-parte, which the sheriff then serves on the defendant. The sheriff then reads the order to him or her, which includes a notication that violation will result in arrest. A hearing is scheduled within 2 weeks. At the hearing, each party testies under oath, and the judge either dissolves the restraining order or issues a civil injunction, which may be temporary

or permanent. As arrest occurs for violation, mentally ill perpetrators more frequently face arrest and incarceration in the jail. A domestic violence case also may be initiated when an individual is arrested for a misdemeanor domestic violence offense, even if no restraining order had previously been issued Fla. Stat. 741.29, 2000). These individuals are incarcerated in the Miami-Dade Pretrial Detention Center. Most such charges are for simple battery, although some are for aggravated battery, a felony outside the jurisdiction of the DVC, which the defendant pleads down to simple battery. More serious crimes of domestic violence are processed in the Miami-Dade criminal diversion as the domestic violence court has jurisdiction only in misdemeanor cases. At arrest, an individual is screened for psychiatric and medical issues by the jail nurse (Dr. J. Poitier, personal communication, May 14, 2007). If the nurse or other jail staff member thinks that the individual is mentally ill and homicidal, suicidal, or vulnerable to victimization by other inmates, he is sent to the 9th oor of the Miami-Dade Pretrial Detention Center. This is a oor within the jail dedicated to those with acute mental illness. Those who present, for example, with Antisocial Personality Disorder alone, reside in general population, as do those with substance abuse issues, except those who are experiencing severe acute intoxication or withdrawal. Within 24 hours of transfer to the 9th oor. a psychiatrist evaluates the inpatients. If the psychiatrist concludes that the individual meets civil commitment criteria under Florida's Baker Act (Fla. Stat. 394.467, 2009 & 394.4655 2009), he or she will submit a Professional Certicate to the Miami-Dade Probate Court, Mental Health Division. A judge of that court then will sign a transport order authorizing the sheriff to transport the individual to a Baker Act receiving facility, typically Jackson Memorial Hospital. The individual may accept voluntary hospitalization as well under Florida Statute 394.4625 (1972). Should a jailed inmate subsequently decompensate, the issue of involuntary or voluntary hospitalization will be considered or reconsidered. If the inmate does not meet criteria for hospitalization, the jail psychiatrists will determine if he or she needs medication and is willing to provide consent for the treatment. Regardless of the reason for the arrest, all jailed individuals receive a rst appearance before a judge, typically occurring within 24 h of the arrest (Fla. Stat. 741.2901, 2000). This hearing occurs before a criminal judge in the county court, not a domestic violence judge. Until the rst appearance, release on bond or otherwise is not possible (Fla. Stat. 741.30, note 6, 2009). At this hearing, a judge inquires about the existence of probable cause for the criminal charge or the violation of the restraining order or injunction. If no probable cause is established, the individual will be released from jail and any criminal charges will be dismissed. If probable cause is established, the court may then consider whether the individual is competent to understand the charges (Fla. Stat. 916.1213, 2006). If the individual is competent, he or she will precede with the rst appearance, which includes setting of bond, issuance of a stay away order, and scheduling of the arraignment date. If incompetent, the individual will receive treatment, in either the jail or an inpatient crisis unit, most likely Jackson Memorial Hospital. Competence evaluations are rarely ordered (Judge White-Labora, personal communication, June 4, 2007). At the rst appearance, the prosecutor needs to establish probable cause to support the charges (Fla. Stat. 741.2901, 1994). Typically, the rst appearance is the rst opportunity for the family or signicant others to convey information to the judge. Frequently, they come to court to describe the individual's mental illness and give testimony concerning how they experience manifestations of the disorder (Judge White-Labora, personal communication, June 6, 2007). Upon learning of the individual's mental illness, the rst appearance judge will then transfer the case to the mental health calendar of the Domestic Violence Court. An arraignment will occur within three weeks, or for those returned to jail following a restoration to competency, within three days of such return (Judge White-Labora, personal communication,

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June 6, 2007). Judge White-Labora presides at the arraignment of those on the mental health calendar. At the arraignment, the defendant rst learns whether the prosecutor is willing to offer participation in the Pre-Trial Diversion (PTD) program and then he or she enters a plea. The PTD is a voluntary court-monitored 12-month program that if completed, will result in the dismissal of the criminal charges (C. Rust, personal communication, May 31, 2007). If the individual accepts PTD, a plea is unnecessary. If the individual declines PTD or is ineligible for PTD, he or she must enter a plea. If the individual pleads guilty or nolo contendere (no contest), the judge will decide on sentence. The judge will make a sentencing decision after hearing from the prosecutor, defense attorney, the defendant, and the defendant's family or signicant others, who are typically present. Sentencing can be to jail or a term of probation, neither not to exceed 12 months. If she imposes probation, the judge will require as a condition of that probation that the individual participate in a courtmonitored treatment program. If the individual pleads not guilty, a trial will be set. However, on the date of trial, the prosecutor will sometimes null prosse (decline to prosecute), typically because the evidence is insufcient. If a trial occurs, the individual will either be acquitted or convicted. If convicted, sentencing will occur, which can either be a period of connement in the jail for up to 12 months or a term of probation, usually with a treatment condition. 3.1. Pre-Trial Diversion program The Pre-Trial Diversion program is available only with the agreement of the prosecutor (C. Rust, personal communication, May 31, 2007). Three specic criteria are required for a defendant to be eligible for this program. The defendant must (1) be formally diagnosed with an Axis I psychiatric illness, (2) have no prior felony convictions, and (3) not have a chronic history of repeated offending, as evidenced by numerous misdemeanor convictions. The court is staffed with a specially trained public defender, who counsels them about the potential legal benets and risks associated with the PTD Program. Defendants who face traditional criminal legal proceedings run the risk of an unfavorable adjudication with subsequent penalties that can heavily interfere with their quality of life, even after fullling their sentence. For instance, a criminal record, much less a jail term, can signicantly impede one's ability to obtain future employment and pursue many educational opportunities. Furthermore, because South Florida has a large immigrant population, often there is an added concern of potential deportation following conviction. Since acceptance into the program occurs at a pre-trial stage, defendants are able to defer temporarily their plea until either successful completion of the program or repeated violations, which result in discharge. The judge will dismiss all charges upon successful completion of the pre-trial diversion program, with the result that the former defendant will not have a record of conviction and therefore is less likely to lose future employment, licensure, and educational opportunities. As a result of the program's patient-centered approach, participation may also improve housing opportunities and help the participant to obtain government nancial or service-oriented assistance. This, of course, is in addition to the benets of achieving stabilization of their psychiatric conditions and a substantial reduction in symptomatology. Alternatively, some defendants may nd participation disadvantageous. The potential for unwanted side effects due to taking medications is signicant. In addition, defendants with a history of substance abuse may also be required to abstain from alcohol or drug use. Moreover, for the majority who wind up residing in Assisted Living Facilities (ALF), even in the absence of a judicial order, ALF prohibits drinking and the use of drugs on the premises, and these facilities impose a curfew (D. Acosta, personal communication, June 26, 2007). Finally, given the average estimated length of the program (i.e., 12 months) the period of judicial and program involvement for

many defendants, may exceed the period of their incarceration had they pled guilty or been convicted. In addition to describing the risks and benets, public defenders assist the Judge in communicating systemic and procedural differences that distinguish the PTD program for those on the mental health calendar from the procedures for domestic violence defendants who are not mentally ill. The non-mentally ill PTD group attends only batterer's intervention and anger management classes, typically lasting 24 weeks (Fla. Stat 741.325, 2006). By contrast, those in the DVMHC also receive psychiatric care, which routinely includes medication, psychiatrically oriented case management, and group therapy with mental health professionals. The PTD program for those with mental illness is less structured and less intense due to this population's lower frustration tolerance. For example, probation ofcers regularly monitor the nonmentally ill group and the judge requires court appearances following problems in compliance (Fla. Stat 741.327, 2006). In contrast, the judge with the complete power of the state monitors the mentally ill group herself, requiring regularly scheduled court appearances even when the offenders have complied with the program (Judge WhiteLabora, personal communication, June 6, 2007). The court tailors the duration of the treatment program for mentally-ill defendants according to each individual's treatment needs and similarly the judge requires fewer court appearances as the offenders show progressive success in compliance with the treatment plan. If the defendant opts for PTD, the judge holds an extensive colloquy with him or her concerning this decision. The family or signicant other is typically present in court to ensure that family members and relatives fully understand the program and its expectations. During this meeting, the judge seeks to explain the program requirements, including the details of treatment, the defendant's responsibilities to attend the program and to be compliant with medication, to obey any stay-away order that the court has issued, and to report to court when scheduled. The judge further assures all who are present at the hearing, that acceptance of PTD is not a guilty plea and that she will dismiss all related charges upon successful completion of the program. However, she also cautions that failure to comply with program requirements will result in arrest and trial. The judicial team includes two types of case managers; one employed almost full-time by the Administrative Ofce of the Court (AOC) for Domestic Violence Court (DVC), and three others who are employed by the community treatment programs in which the defendants are regularly placed. The case manager for the AOC of the DVC who typically carries 30 cases a month participates in court two days per week, and when working on DVC cases will work outside of the ofce for another number of hours. In court, approximately 60% of the progress reports to the court are on the defendant's status of compliance. The public defender's ofce refers individuals with mental illness who receive governmental nancial assistance to the AOC case manger to help them obtain residential placement in specialized residential facilities. Case managers for hospitals and outpatient facilities also participate in the DVMHC, and frequently appear in court (Wilson, personal communication, March 21, 2007). They are responsible for determining if the individual qualies for the hospital, residential, or community treatment program. They assist in the search and potential reactivation of previously held Medicaid or disability services to increase the defendant's chances of obtaining the necessary services. These case managers also assist with the preparation of voluntary hospitalizations, obtain ALF housing, arrange doctor visits, and schedule group counseling sessions. They are responsible for monitoring the progress of defendants receiving services from their institution, and reporting to the court on a regular basis (typically on a weekly basis, transitioning to monthly reports following ongoing compliance) on issues of compliance and progress. Case managers make suggestions to the judge on ways to increase compliance when difculties arise based upon their more extensive experience with the individual defendants.

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In cases where compliance becomes a growing concern, the judge may reprimand the individual in court, require additional services, or obtain an additional psychiatric evaluation. Only in rare cases of serious and repeated non-compliance will the judge revoke pre-trial diversion and issue a jail detainment ordered in its place. In such circumstances, the court will require the defendant to plead to the charge, and possibly face trial. More typically, the judge will sanction non-compliance with a stern lecture. The judge generally affords numerous opportunities to those who violate program requirements. This can create potential disadvantages for the prosecutor, who must collect the evidence and present the prosecution many months after the original violation transpired. This is especially cumbersome in misdemeanor cases because the evidence or witnesses may be unavailable after several months have elapsed, sometimes resulting in the dismissal of the charges. However, Judge White-Labora states that perhaps because they are mentally ill, these defendants and their attorneys do not enter PTD in a manipulative manner with the intention of abusing the program so that they can subsequently enter a plea at a later time, when the prosecutors' case will be weakened (Judge White-Labora, personal communication, June 6, 2007). In addition to the structural and procedural components required to maintain such a specialized court, the judge relies on many interpersonal techniques borrowed from Therapeutic Jurisprudence supported empirically in the behavioral science literature, which she considers essential for increasing the potential for achieving positive results. The judge encourages case managers and other staff to exemplify these characteristics of their involvements with the defendants. For example, the judge and staff treat the defendant with dignity and respect by taking care to pronounce his or her name correctly, making eye contact when they speak to the defendant, and by providing opportunities for the defendant to speak. The judge practices good listening skills and employs open-ended questions in an effort to stimulate defendants' willingness to share their potential concerns. Pointedly asking defendants if they are willing to make a commitment to the program is likely to enhance any residual sense of accountability. The court team uses motivational interviewing skills (Miller & Rollnick, 2002) to spark the individuals' intrinsic motivation to comply with program requirements (Judge White-Labora, personal communication, June 6, 2007). Judges in the Miami court provide encouraging feedback during scheduled progress report hearings to move the defendant along on the road to success. When the individual has satisfactorily completed the program, the judge and the court staff offer praise during court, and hold a graduation ceremony during which they and all present laud the individuals' accomplishments. This public form of encouragement and applause reinforces the defendant's program compliance and success, while at the same time, providing a source of vicarious reinforcement for other defendants who are waiting for their hearings in the courtroom (Judge White-Labora, personal communication, October 18, 2007).

B.D. was eligible for the program because his was a misdemeanor charge, it was his rst time before the Court, and he carried an Axis I psychiatric diagnosis of Bipolar Disorder. - The court formally offered B.D. the opportunity to participate in the PTD program at his next hearing (October 14, 2005), and he accepted. The judge informed B.D. and his family about his involvement in the program during the hearing, at which time he committed to participating by signing the required forms. The judge initially ordered B.D. to participate for 6 months. Upon his acceptance into the program, a community case manager was assigned to assist in identifying needed services and to monitor B. D.'s overall progress. Monthly reports revealed gradual improvements in his symptoms and behavior. Services consisted of frequent psychiatric monitoring, group therapy participation, and anger management and batter's programming. The judge was able to provide consistent positive feedback and words of encouragement during each progress report hearing. His case manager described B.D. as the model client. He successfully graduated from the PTD program just over 7 months from the day of his arrest. On that same date, the state attorney nolle prossed the charges and the judge dismissed them. One year later, B.D. had no record of subsequent criminal charges or petitions for civil injunctions against him. 3.2. Probation program Defendants who refuse participation in the PTD program or are ineligible, due to the aforementioned exclusion criteria, may instead receive a probation term or be sentenced to imprisonment if they are found guilty of their charges. After consulting with their attorneys, these defendants must enter a plea to the charges (or plea bargain) at their arraignment. Guilty pleas that are not a product of a plea bargain will often result in an immediate sentence imposed by the judge. (Judge White-Labora, personal communication, August 31, 2007). It is worth remembering that all defendants accepting probation as part of a plea agreement voluntarily and competently make the choice with knowledge of the terms and requirements of any agreement. On the other hand, not guilty pleas will typically result in a trial at the end of which the judge will impose sanctions on the defendant if convicted. However, in some cases, the prosecutor may determine that there is insufcient evidence of guilt, and will null prosse or dismiss the charges. Furthermore, the Court may offer probation to mentally ill defendants with extensive psychiatric histories and several prior criminal charges. For those with less serious illness and less recent prior charges, PTD, with its potential for dismissal of charges, may still be available. Those who fail in PTD may nd themselves in probation. The duration of probation can last no more than 12 months. Probation involves releasing the defendant under judicial supervision with specied conditions that reduce the risk of recidivism and maintain community safety. The usual terms of probation commonly prohibit excessive drinking, illicit drug use, the possession of rearms, and contact with the victim(s) (Fla. Stat 741.325, 2006). For DVMHC, the judge also imposes participation in a treatment program, which includes psychiatric care, batterer's intervention, and anger management (Judge White-Labora, personal communication, June 12, 2007). However, for cases that resolve with a conviction, probation does not include the mental health treatment component. Instead, it includes only a batterer's intervention and anger management program (Fla. Stat 741.325, 2006). Additional similarities between probation and PTD include overlapping use of case manager services, periodic progress reports to the court, and the option for voluntary hospital admission or ALF (Assisted Living Facility) placement. The court staff applies the same motivational and procedural justice techniques as they do for PTD cases. There are also differences in probation for those who participate in the PTD program and those who have rejected such involvement. For example, because the court has adjudicated guilty defendants in

3.1.1. Case illustration Consider the following case example from the pretrial diversion program. B.D. was initially arraigned on August 31, 2005 before the criminal court due to charges of simple battery for allegedly having attempted to choke his son. B.D. remained in jail for 9 days after being unable to post bond and refusing voluntary psychiatric hospitalization. At his son's request, B.D's stay-away order was modied on September 9th to allow his return home while he awaited his next trial, at which point the state attorney would decide whether to offer him the opportunity to participate in the PTD program. In an effort to increase compliance, the judge informed him that his chances of being offered the PTD program would dramatically decrease should he fail to comply with his medication and recidivate in any form while at home.

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probation, they retain a record of conviction, while the judge may dismiss the charges for those in the PTD program if they successfully complete the program. Probation within the DVMH Court also differs from standard domestic violence court probation for those who are not mentally ill. In the standard probation program, probation ofcers supervise cases and the judge is rarely involved. Those in the DVMHC probation program also receive psychiatric treatment and housing assistance, whereas those in standard probation do not. The consequences of violating the terms of probation are another area that distinguishes the programs. For defendants not involved in the PTD program, such violations can have grave consequences up to and including incarceration. In such cases, the court has already found the defendant guilty so that the prosecutor only needs to show that a probation violation has occurred. In contrast, those who violate the PTD program requirements must rst have a trial before the judge can impose legal sanctions. As a result, according to Judge White-Labora it is common for this group to receive a greater degree of leniency when they commit violations (personal communication, June 12, 2007). A similar trial process ensues when a defendant voluntarily or involuntarily withdraws from the PTD Program. The judge adjudicates all violations of probation in these matters. 3.2.1. Case illustration Consider the following case example of probation. On May 7, 2005, police arrested E.E., for simple battery against his female signicant other. E.E. allegedly slapped her on the upper chest and back, leaving marks. Although E.E. carried a diagnosis of Schizophrenia, and had received treatment for the disease, court records revealed a history of prior charges and court order violations in which he had aggressed against the same victim, thus making him ineligible for the PTD program. Conrmation that E.E. had been involved in treatment and was willing to attend a batterer's program raised the possibility of probation. On July 29th, the victim requested a modication of the stay-away order and the court granted it to E.E. on July 29th based on his treatment compliance and improved functioning while at his then current place of residence. The attorneys negotiated a plea bargain, which required E.E. to continue residing at his current address, take his prescribed psychotropic medications, participate in the batterer's intervention program, and cooperate with all subsequent courtmonitored appointments. E.E. accepted the bargained plea. The assigned case manager presented favorable progress reports to the court beginning September 23rd and continuing on for subsequent hearings. The judge repeatedly complimented and praised E.E. with each positive report. Ongoing improvement and compliance with the terms of probation resulted in early release. As of May 31, 2007, E.E. had no subsequent criminal charges, but the court did issue a subsequent civil injunction in response to a petition by the same victim. 3.3. Conditional release At any time in the criminal process, when the defendant's competency to stand trial becomes an issue, the judge typically orders a competency evaluation (Fla. Stat. 916.1213, 2006). Following a determination of incompetency, the judge may commit the defendant to a psychiatric hospital for inpatient treatment, or authorize conditional release, in which case the defendant must report for treatment for competence restoration on an outpatient basis (Judge White-Labora, personal communication, June 12, 2007). (Fla. Stat. 916.13 and 916.17, 2006). Defendants who are incompetent to proceed may not plead or go to trial, and hence are not eligible for PTD or probation. The judge will typically order conditionally released patients to take psychotropic medication as treatment. The judge and the case manager monitor the offender's compliance on the medication regimen. Although the duration of conditional release varies as a result of court structure and jurisdiction, the DVMH Court in Miami-Dade County is a

misdemeanor court and thus restricts the term to last no more than 12 months (Judge White-Labora, personal communication, June 12, 2007) (Fla. Stat. 916.17, 2006). The more severe mental illness that characterizes this population often prevents the judge from engaging in as much motivational interviewing and procedural justice techniques as she usually uses with PTD and probation cases. For similar reasons, the judge may be less strict in sanctioning violations with this population (Judge WhiteLabora, personal communication, June 12, 2006). In cases where the offense is relatively minor and the defendant was unsuccessful in conditional release, or seems unlikely to be able to comply, the judge will sometimes consider crediting the defendant for time already served in treatment. 3.3.1. Case illustration D.D., was arrested on August 15, 2005 for simple battery after having slapped his younger sister and punched his mother over a minor disagreement. Given his mental state at the time of his arrest, the county jail's chief psychiatrist led a petition for civil commitment to the local inpatient psychiatric receiving facility. Following the initial court hearing, the judge ordered a transfer for D.D. Inconsistent stabilization of D.D.'s psychotic symptoms contributed to multiple hospitalizations between August 19, 2005 and March 24th, 2006. A conditional release was ordered on March 24th of 2006 after the court evaluated the public defender's concerns over the defendant's competency. The outcome was that D.D. resided exclusively at the ALF, that he participated in an outpatient treatment program to help him regain competency, and that court case managers carefully monitored his progress. The case managers provided periodic reports to the court describing his compliance and progress. Aside from a brief hospitalization to readjust his medication regimen, D.D. remained compliant with all requests and free from domestic aggression for a period of 10 months. D.D. completed the program on October 6th of 2006 and all present in the courtroom applauded for his accomplishments. D.D. has remained free of subsequent criminal charges and petitions for a civil injunction as of May 31st of 2007. 4. Retrospective study of cases in the domestic violence mental health court 4.1. Method and population To illustrate the types of clients that participate in the DVMHC, we compared the descriptive and process measures of individuals who agreed to participate in the program comparing them to mentally ill defendants who declined to participate. As such, we collected data in order to obtain preliminary information regarding the population of the DVMHC, regarding the potential paths these mentally ill defendants with differing legal statuses may face. The time period for the selected cases ranged from May 1, 2005 to October 31, 2005. Although an informal diversion program for those with mental illness has existed in the domestic violence court since 1994, the program itself formalized in 2004. It was not until early 2005, after a period of growing pains, that the program emerged in its present form. We chose a 6-month period commencing in May 2005 in the hope that it would provide a sufcient number of cases of those processed through the program, as well as providing insight as to the differing paths of the various defendants. Data came from the records of the Miami-Dade County Domestic Violence Mental Health Court for this period. We gathered descriptive data from reviewing 54 cases identied by court record management personnel came from the general Domestic Violence Mental Health Court. Measures included demographic information along with charges and other case specic information. The information collected allows for some preliminary understanding about the biographical and mental health characteristics of these defendants, the identity of

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their victims, the type of charges most frequently coming before this court, and trends pertaining to the judicial process. The large majority of the 54 defendants (78%) fell between 20 and 50 years of age, with 33% being in their twenties. Interestingly, a small percentages (7%) of the defendants were 60 years old or above. This number increased to 18.5% if we included those above the age of 55, a percentage actually greater than those defendants who were in their thirties (15%) at the time of their arraignment. Defendants were predominately male (81.5%) and of Hispanic descent (52%), with African-American and Caucasian accounting for 26 and 13%, respectively. The high number of defendants of Hispanic descents is representative of the unique demographic composition in Miami-Dade County, which according to 2008 census makes up 62.4% of the general population. Additional ndings raise awareness to the nancial difculties of this population. At least 30% were not receiving some form of government assistance, and at least 57%, reported being unemployed. Eleven percent of the population reported that they were homeless. While a broad range of diagnoses were reported, mood and psychotic disorders were most prevalent (14% each). Cooccurring (mood and psychosis) conditions accounted for 12% of cases. Substance abuse was also involved in approximately 23% of the cases. Type of legal charge was divided into simple battery, those communicating the presence of greater violence (e.g., assault with and without a weapon), and other charges (e.g., violation of civil injunctions). A clear majority of defendants carried a single charge of simple battery (79.6%). Severity of injury was classied by the documented presence of an injury to the victim (e.g., bruising on the face) and need for immediate medical attention of any kind. In spite of the misdemeanor quality of these cases, only 50% of the cases involved no observed physical injury to the victim. These numbers do not include the detrimental psychological impact that directly affects victims of domestic violence or their bystanders. The victims of these acts of violence were typically women (71.4%) and often, romantic partners (37%). Family members who by default assume the primary caretaking roles for many of their psychiatrically ill loved ones unfortunately face the ongoing threat of physical harm. For example, parentchild disputes accounted for 22% of all episodes of violence, while siblings accounted for 16% of the victims. Regarding the legal status of the cases, of the total number, approximately half were accepted into the PTD program. Approximately one quarter of defendants received probation sentences, either because they were not eligible for PTD program or by choice. A smaller portion, (11%) of the defendants, pled guilty and was released on time already served. Of those admitted into the PTD program, 54% completed the program successfully and their cases were dismissed. The remaining 46% had their adjudication withheld while receiving terms of probation. In total, the average case lasted just over eight months from ling date to its closing. A large difference in duration of the case emerged for those who successfully completed the PTD program (13.5 months) compared to those who the judge transferred out during the process and gave probation (5.0 months). 4.2. Comparison across types of programs We reviewed a second distinct group of 20 cases that were active within the DVMHC between May and October of 2005 and we followed them for a 2-year period after disposition recording incidents of recidivism from case les. These cases include some defendants who participated in Pre-Trial Diversion, some who were on Probation, some on Conditional Release, and others who rejected the DVMHC and opted for Trial. The court records indicated that all individuals in the rst three categories received court-monitored interventions in an attempt to provide ongoing psychiatric care. We report these data not as an evaluation of the DVMHC but rather as a description of the process to help clarify the types of individuals that

participate and the trajectory of the type of cases that the court processes. A total of 11 of these 20 defendants agreed to participate in one of the intervention of the DVMHC interventions, while the other 9 rejected the program. Five went to Pre-Trial Diversion, 3 went to Probation, and 3 went to the Conditional Release program. Of the 3 DVMHC defendants who participated in the probation program, 2 of them completed the one-year probation period. The third was arrested after 2 months and his probation was revoked. As a result, we dropped this case from the study leaving a total of 19 defendants to follow, 10 of whom received intervention from the DVMHC. Three of the defendants, who were incompetent to stand trial, participated in the conditional release aspect of the program. The ten cases remaining in the study appear in the rst column of Table 1. Of the nine mentally ill defendants who pled not guilty and opted for trial rather than participating in the DVMHC, the prosecutor nolle prossed ve of their cases. In addition, the judge dismissed one defendant, and tried and convicted three others. Of these three, two of these defendants received credit for time served, and one was sentenced to jail. These nine cases appear in the second column of Table 1. In an effort to describe the outcomes of the DVMHC intervention programs, all 20 cases were reviewed to determine whether there were subsequent criminal charges, civil injunctions, and involuntary psychiatric hospitalizations. Of the 20 cases, which included the 11 defendants who received intervention from the DVMHC, and the 9, who declined participation, nine had subsequent criminal charges. Three of those nine individuals had participated in the court intervention programs. One had completed the Pre-Trial Diversion Program, one had completed the Probation Program, and the last had completed the Conditional Release Program. The remaining six individuals with subsequent criminal charges were those that had declined to participate in the DVMHC. In addition to those who faced criminal charges, two of the 20 defendants were the subject of a subsequent civil injunction. One of these individuals was a participant in DVMHC, and had completed the Probation Program, while the other was one of the nine individuals who had declined participation in the DVMHC. Finally, three of the 20 individuals were the subject of involuntary psychiatric hospitalization beyond 72 h. Of these, two of the individuals had participated in the DVMHC, while the third had declined. The rst DVMHC participant had completed the Pre-Trial Diversion program, while the other completed the Conditional Release Program. The charges against the individual who had elected not to participate in the DVMHC were nolle prossed. Overall, six of the nine individuals who had subsequent criminal charges were ones who had declined the intervention from the DVMHC program. Of the two that faced civil injunctions, one had participated in DVMHC, while the other had declined participation. Lastly, of the three individuals that faced involuntary psychiatric hospitalization, two were participants in the DVMHC program. For a fuller understanding of the details of these cases we proceeded to analyze the types of criminal charges each of the defendants' faced. As mentioned previously, three of the nine

Table 1 Overall composition of defendants' cases. DVMHC participants Pretrial diversion program Probation Conditional release Nolle prossed Dismissed Convicted Total 5 2 3 0 0 0 10 DVMHC non-participants 0 0 0 5 1 3 9

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B.J. Winick et al. / International Journal of Law and Psychiatry 33 (2010) 428439 Table 3 Number of subsequent charges of each DVMHC non-participant. Defendant Nolle prossed Dismissed 1 1 0 1 2 0 Convicted and time served 1 0 0 4 0 2 Total 2 1 3 6 2 2

defendants who had subsequent criminal charges were participants in DVMHC. The rst of the three defendants had three subsequent misdemeanor charges. Two of the charges were nolle prossed by the prosecutor, the court dismissed one of the charges, and the last resulted in a guilty plea without trial. This defendant additionally had one subsequent felony charge that the prosecutor nolle prossed. The second defendant had two subsequent misdemeanor charges, one that was dismissed by the court, and the other, which resulted in a conviction and a sentence of time served and a ne. The nal defendant had two subsequent misdemeanor charges, both of which resulted in convictions and sentences of time served and a ne, as well as one subsequent felony charge that was nolle prossed by the prosecutor. The subsequent charges for these three defendants appear in Table 2. The six defendants who had declined participation in the DVMHC had a total of 16 misdemeanor and 6 felony charges. The rst defendant had two subsequent misdemeanors, one that the court dismissed, and the other that resulted in conviction, a sentence of time served, and a ne. The second defendant had one subsequent misdemeanor that the court had also dismissed. The third defendant had three subsequent misdemeanor charges, all which the prosecutor nolle prossed, as well as ve subsequent felony charges, four of which the prosecutor also nolle prossed, and one of which resulted in conviction and a sentence to time served and a ne. The fourth defendant had six subsequent misdemeanors charges, one that the prosecutor nolle prossed , one that the court dismissed, and the remaining four that resulted in convictions and sentences of credit for time served and nes. The fth defendant had two subsequent misdemeanor charges, both of which the court dismissed. The nal defendant had two subsequent misdemeanors charges, both resulting in conviction and credit for time served and a ne, as well as one subsequent felony charge, which the prosecutor nolle prossed. The subsequent charges for these six defendants who chose not to participate in the DVMHC appear in Table 3.

Misdemeanors 1 0 2 0 3 3 4 1 5 0 6 0 Felonies 1 2 3 4

0 0 4 1

0 0 0 0

0 0 1 0

0 0 5 1

5. Conclusion The Miami-Dade County Domestic Violence Mental Health Court is an explicit therapeutic jurisprudence application. The judge functions to assist those with serious mental illness who commit domestic violence offenses to obtain needed treatment. Applying the approaches of drug treatment court, mental health court, and domestic violence court, the judge attempts to motivate the individual to obtain treatment, facilitate its delivery, monitor compliance, and bolster the individual's self-esteem and self-efcacy, building on existing strengths. The judge functions as a member of the treatment team, and applies a therapeutic rather than a punitive approach. In this regard, the judge performs a public health function. In playing this role, the judge uses approaches and applies principles of psychology. The judge displays empathy, listens to the individual,

Table 2 Number of subsequent charges of each DVMHC participant. Defendant Nolle prossed Dismissed Adjudication withheld 1 0 0 Guilty plea 1 0 0 Convicted and time served 0 1 2 Total

Misdemeanors 1 2 2 0 3 0 Felonies 1 2 3

1 1 0

5 2 2

1 0 1

0 0 0

0 0 0

0 0 0

0 0 0

1 0 1

treats the individual with dignity and respect, and uses a form of behavioral contracting. The domestic violence mental health court involves a team approach in which court personnel and treatment providers assist the judge in the process of screening offenders to determine their appropriateness for the court. This typically includes whether the offenders have mental illness, whether they need treatment, and whether they would present a risk of violence if released to the community. The team helps to devise an appropriate treatment plan and to supervise and monitor the individual offender's performance and treatment. The domestic violence mental health court judge is a member of this treatment team. An essential part of the judge's role is to attempt to motivate the individual to accept needed treatment. The judge uses a form of motivational interviewing designed to trigger the individual's intrinsic motivation to deal with his or her mental illness. The team formulates an appropriate treatment plan, and court personnel, typically including a case manager and monitor, follow the individual's participation in the treatment program and submit periodic reports to the judge. The individual enters into an informal behavioral contract with the court in which he or she agrees to participate in treatment and to report periodically to the court so that the court can monitor treatment compliance. The judgeparticipant interaction at these periodic hearings is an essential component of the court process. The individual is encouraged to discuss his or her experiences and problems in treatment. The hearing becomes an exercise in creative problem solving in which the judge and other members of the treatment team attempt to resolve difculties and overcome obstacles that have arisen in the treatment process. The hearing typically occurs in the presence of other domestic violence mental health court participants, all of whom are scheduled for a common report date. As a result, not only does the individual whose case is being discussed benet from the court process but so do the other domestic violence mental health court participants who are present and who may be experiencing similar problems. The judge at these hearings often functions to help shape the individual's behavior by praising treatment compliance or sanctioning those who miss appointments or otherwise fail to comply with the treatment program. The behavioral contract that the individual enters into with the court, often on an informal basis, typically species the details of required participation and the sanctions that can result from noncompliance. Other domestic violence mental health court participants observing the individual's interaction with the judge, experience a measure of vicarious reinforcement. At the completion of a sufcient course of treatment in which the individual has achieved the goal specied in the behavioral contract and has demonstrated consistent performance and responsibility, the domestic violence mental health court judge will dismiss the individual's charges.

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The domestic violence mental health court represents a multiagency community response to the problem of untreated mental illness. The process is designed to motivate the individual to accept needed mental health treatment and to encourage and monitor treatment compliance. The judge and members of the treatment team often play a social work function in linking the individual to treatment resources in the community and facilitating their utilization and the individual's ongoing participation. Once the individual has agreed to accept participation in domestic violence mental health court, the defense attorney and prosecutor typically function to help motivate the individual to accept and to comply with treatment. To play their roles effectively, the judge and attorneys need enhanced interpersonal skills and an appreciation that they are functioning as therapeutic agents (Winick, 2003; Winick & Wexler, 2003). In many ways, the domestic violence mental health court judge functions as a social worker. The domestic violence mental health court is an example of a hybrid problem solving court. Like other problem solving courts, the domestic violence mental health court is a specialized tribunal designed to help people solve their problems and to motivate them to accept various forms of rehabilitation or treatment (see Winick & Wexler, 2003). These courts apply principles of therapeutic jurisprudence to help to achieve the psychological well-being of those who appear before them. Like other problem solving courts, the domestic violence mental health court represents a new type of psychosocial agency. A judge may not be the best professional to play this role, but these problems confront the judge because our society often fails adequately to deal with the problem of untreated mental illness, with the result that the individual often winds up in the jail and the court. For this and other problem-solving court models to work more effectively, we need to provide more training in the approaches and techniques of psychology and social work for the judges in these courts. They themselves are not clinicians, but they are behavior-change agents, and they need to understand many of the techniques of psychology and social work in order to play their roles effectively. Our observations of Judge White-Labora revealed that she possesses an intuitive grasp of these approaches and an excellent ability to establish rapport with the individuals in court. In general, however, it is essential that a judge taking on this role enhance his or her interpersonal skills, understand the psychology of procedural justice, and understand techniques of motivation and compliance assurance. An emerging therapeutic jurisprudence literature deals with these issues and seeks to teach judges how to play these new roles (Winick, 2003; Winick & Wexler, 2003). This new model presents some potential risks that are worthy of comment. One risk is that domestic violence mental health courts, if seen as an effective means of treating those with mental illness who resist treatment in the community, may be available to those who otherwise would not be considered to have committed domestic violence offenses. Out of frustration, the family may allege domestic violence in order to obtain the treatment intervention of the court. If applied in this way, to those who otherwise would not have been involved in domestic violence court, this would constitute an abuse of the model. The risk is that the police, at the behest of relatives or intimates, may arrest people with mental illness for offenses for which they may not have otherwise have arrested them. In other words, a successful domestic violence mental health court could have the effect of altering police arrest practices in the community aimed at dealing with people with untreated mental illness who may cause trouble that vaguely ts within the jurisdiction of the domestic violence court. Such a widening of the social net would be inappropriate, leading to further criminalization of those with mental illness. There is, however, no evidence that the domestic violence mental health court has been used in this way, producing the arrest of people for domestic violence offenses who otherwise would not have been arrested. Indeed, both Judge White-Labora and the public defender in her court deny that this has been a problem.

It would be a serious mistake to use domestic violence mental health courts in this way. There are much better ways of getting needed treatment to those with mental illness than through the stigmatizing and unpleasant means of arrest for a domestic offense. Many police receive no training in how to deal with people with mental illness. Such training should be widely available, and police should be encouraged not to arrest people with mental illness whom family members and others allege have committed petty domestic violence offenses. Instead, they should divert them from jail by bringing them to appropriate community treatment facilities or linking them up to an assertive community treatment team. The family or intimate who makes a domestic violence complaint, but who is really seeking to get the individual into treatment, may understand if the ofcer explains the negative effects of arrest in jail and positive opportunities that community mental health treatment may involve. Domestic violence mental health courts should only divert those with mental illness who are arrested for domestic violence offenses for which they would have been arrested anyway. Otherwise, they could produce unnecessary criminalization and stigmatization of those with mental illness (Seltzer, 2005). Although it is good to divert people with mental illness from the criminal justice system, it is far better to divert them through alternative means that can avoid the criminal justice system altogether. Police arrest practices therefore should not change in response to domestic violence mental health courts. If anything, police should be encouraged to make lesser use of arrest and rely on other forms of diversion. An additional concern is the risk that domestic violence mental health court could lead to a fragmentation in the service delivery system. To the extent that domestic violence mental health court provides access to services not available for those with mental illness who do not commit domestic violence offences, a question of horizontal equity emerges. This problem, however, can be avoided. The level of services in the community should be increased generally, and all who voluntarily seek mental health services should have easy access to them. Given the serious social problems that untreated mental illness can produce, appropriate mental health services should be available on demand for all who desire them, and outreach services, including assertive community treatment, should be increased to reach out to all who are in need. We should have more of a preventative approach designed to avoid the necessity of hospitalization or arrest. If these needed services are provided, domestic violence mental health court will not result in affording those in the criminal justice system a superior access to needed services. An additional issue that domestic violence court raises is whether the defendant is sufciently competent to provide informed consent to participate, and whether the choice made is truly voluntary (see Redlich, 2005). Some defendants with serious mental illness may not possess the requisite competence, but many will. When the question of a defendant's competence to accept diversion and treatment is raised, an inquiry into competence may be necessary as a matter of due process. Defense counsel can play an important role in ensuring that the individual is sufciently competent to accept court participation, that he or she knows the consequences of accepting or rejecting such participation, and that the decision is made voluntarily rather than through coercion. Counsel should do this to not only protect clients' legal rights and interests, but also because doing so will maximize the therapeutic potential of the domestic violence mental health court, and thereby promote clients' psychological well-being (Winick, 2003). A difcult problem arises when the defendant, at rst court appearance, presents in a orid state of psychosis. At this point, defense counsel will be unable to counsel the client effectively. Yet, should the judge order a formal competency evaluation, this may impose unnecessary delay and require that the defendant be returned to the jail. To avoid this, when the client assents to participation in the

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domestic violence mental health court program, and counsel concurs that it would be in his best interest, the court may consider accepting the defendant's assent provisionally, and allowing medication to start. After medication has had its desired effect, and the defendant is stabilized, defense counsel can have a more extended counseling session with the client to determine if he or she is capable of making an informed choice. If there is doubt about this, defense counsel may move for a formal competency determination and the court should grant a deferred withdrawal from the domestic violence mental health court program without prejudice (Seltzer, 2005). Should the defendant, in a more competent state, opt not to be in the program, the court might similarly grant a deferred withdrawal without prejudice. Assuming the defendant possesses the requisite competence to make the decision, the question of voluntariness remains an issue. In some problem solving courts, the judge, acting out of an excessive paternalism, pushes the individual to make the decision to accept court participation. Pressure of this kind is inappropriate, but seems not to be evident in the domestic violence mental health court we observed. In general, we need to make judges understand that they should not act paternalistically in playing their roles as problem solving court judges, but rather should give individuals a full measure of choice in whether to accept or reject participation (Winick, 2003). Individuals charged in domestic violence court have a fundamental constitutional right to deny their charges, to insist on a fair trial, and to mount a defense, if they wish to do so. Judges must respect the right of mentally ill defendants to do so even if the judges believe that the defendants should accept court participation instead. For those who accept participation, judges should seek to ensure that the defendant's decision is a voluntary and competent one. In many respects, assuring voluntariness and competence is the primary role of defense counsel. Defense lawyers should adequately counsel their clients about the advantages and disadvantages of accepting court participation. The problem of avoiding coercion in the defendant's decision whether to accept domestic violence mental health court can be signicantly diminished if the judge and defense lawyer play their roles in these ways. Moreover, it is crucial that both the judge and defense lawyer treat the defendant with dignity and respect, demonstrate to the defendant their good faith, and accord the defendant a sense of voice and validation. If they act in this way, the likelihood that the defendant will experience feelings of coercion will be substantially reduced. This is important not only in increasing the defendant's sense of satisfaction with domestic violence mental health court, but also in increasing treatment compliance (Redlich, 2005; Winick, 2003). The Miami-Dade County Domestic violence mental health court we observed seemed to avoid many of these problems and to reect an appropriate application of many of the psychological and social work techniques that are needed for effective functioning in the problem-solving court context. To function effectively in this context, both the judge and the defense attorney must have enhanced interpersonal skills, must eschew paternalism, must treat the individual with dignity and respect, must heed the lessons of procedural justice, and must understand the psychological dimensions of such techniques as behavioral contracting and motivational interviewing (Winick, 2003). When the judge, lawyers, court personal, and the treatment providers they work with learn to function in these ways, they can establish in the domestic violence mental health court a supportive culture that can meaningfully facilitate the defendant's restoration to mental health. The arrest and court involvement can function as a real catalyst for change, as a therapeutic opportunity for the individual. But the individual must himself or herself see the need for change. The judge, lawyers, and treatment team can facilitate this process, but for it to work, the individual must take primary responsibility for solving his or her own problems (Winick & Wexler, 2003). When it works well, a real

therapeutic alliance can be forged within the courtroom, one that can provide a signicant measure of help for those who wish to accept it. This is the potential of domestic violence mental health court. When it can fulll this potential, domestic violence mental health court can constitute therapeutic jurisprudence in practice. References
Babb, B. (1998). Fashioning an interdisciplinary framework for court reform in family law: A blueprint to construct a unied family court. Southern California Law Review, 71, 469545. Belenko, S. R. (1998). Research on drug courts: A critical review. National Drug Court Institute Review, 1, 142. Belenko, S. R. (2001). Research on drug courts: A critical review 2001 update. New York: The National Center on Addiction and Substance Abuse, Columbia University. Boothroyd, R. A., Poythress, N. G., McGaha, A., & Petrila, J. (2003). The Broward Mental Health Court: Process, outcomes, and service utilization. International Journal of Law and Psychiatry, 26, 5571. doi:10.1016/S0160-2527(02)00203-0. Catalano, S. (2007). Intimate partner violence in the United States.Washington, D.C.: Bureau of Justice Statistics Retrieved from: http://bjs.ojp.usdoj.gov/index.cfm? ty=pbdetail&iid=1000. Center for Court Innovation Research (2003). How do domestic violence courts compare to other problem solving courts? Proceedings of the Center for Court Innovation Research Team Focus Group Sessions Retrieved from: http://www. courtinnovation.org/index.cfm?fuseaction=Document.viewDocument&documentID=598&documentTopicID=&documentTypeID= - last consulted June 14, 2007. Conference of Chief Justices and Conference of State Courts Administrators (2000). CCJ Resolution 22 COSCA Resolution for In Support of Problem-Solving Courts. Journal of the Center for Families, Children, and the Courts, 2, 23. Cosden, M., Ellens, J., Schnell, J., Yamini-Diouf, Y., & Wolfe, M. (2003). Evaluation of a mental health treatment court with assertive community treatment. Behavioral Sciences & the Law, 21, 415427. doi:10.1002/bsl.542. Erickson, S., Campbell, A., & Lamberti, S. (2006). Variations in mental health courts: Challenges, opportunities, and a call for caution. Community Mental Health Journal, 42, 335344. doi:10.1007/s10597-006-9046-7. Fisler, C. (2005). Building trust and managing risk: A look at a felony mental health court. Psychology, Public Policy and Law, 11, 587604. doi:10.1037/10768971.11.4.587. Fla. Stat 741.325 (2006). Fla. Stat 741.327 (2006). Fla. Stat 741.30 (2009). Fla. Stat. 394.4655 (2009). Fla. Stat. 394.467 (2009). Fla. Stat. 741.29 (2000). Fla. Stat. 741.2901 (2000). Fla. Stat. 916.12-13 (2006). Fla. Stat. 916.17 (2006). Hora, P., Schema, W., & Rosenthal, J. (1999). Therapeutic jurisprudence and the drug court movement: Revolutionizing the criminal justice system's responses to drug abuse and crime in America. Notre Dame Law Review, 74, 439555. Huddleston, C. W., Marlowe, D. B., & Casebolt, R. (2008). Painting the current picture: National report card on drug courts and other problem-solving court programs in the United States Retrieved from the National Drug Court Institute website: http:// www.ndci.org/publications/publication-resources/painting-current-picture. James, D., & Glaze, L. (2006). Bureau of Justice Statistics Special ReportMental health problems of prison and jail inmates Retrieved from the United States Department of Justice website: http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf. Jeremiah, J., Pagliarini, R., Lynch, L., & Seebeck, K. (n.d.). Domestic violence court: Stopping the violence. Retrieved from the Judiciary of Rhode Island website: http:// www.courts.state.ri.us/family/domesticviolence.htm Kaye, J., & Knipps, S. (2000). Judicial responses to domestic violence: The case for a problem solving approach. Western State University Law Review, 3, 113. Kondo, L. (2001). Advocacy of the establishment of mental health specialty courts in the provision of therapeutic justice for mentally ill. American Journal of Criminal Law, 28, 255336. Littel, K. (2003). Specialized courts and domestic violence. Issues of democracy. The changing face of U.S. Courts, 8, 2631. Mazur, R., & Aldrich, L. (2003). What makes domestic violence court work? Lessons from New York. The Judges' Journal, 42, 511. Miller, W. R., & Rollnick, S. (2002). Motivational interviewing: Preparing people to change addictive behavior. New York: The Guilford Press. National Drug Court Institute (2009). Drug courts: A national phenomenon Retrieved from http://www.dci.org/research. Petrilla, J. (2007). Civil commitment: A therapeutic jurisprudence model. Psychiatric Services, 58, 572573. Redlich, A. (2005). Voluntary, but knowing and intelligent: Comprehension in mental health courts. Psychology, Public Policy, and Law, 11, 605619. doi:10.1037/10768971.11.4.605. Redlich, A., Steadman, H., Petrilla, J., Monahan, J., & Griffen, P. (2005). The second generation of mental health courts. Psychology, Public Policy and Law, 11, 527538. doi:10.1037/1076-8971.11.4.527. Roman, J., Townsend, W., & Bhati, A. (2003). National estimates of drug court recidivism rates. United States Department of Justice, Washington D.C.: National Institute of Justice.

B.J. Winick et al. / International Journal of Law and Psychiatry 33 (2010) 428439 Sack, E. (2002). Creating a domestic violence court: Guidelines and best practices. San Francisco, CA: Family Violence Prevention Fund. Seltzer, T. (2005). Mental health courts: A misguided attempt to address the criminal justice system's unfair treatment of people with mental illnesses. Psychology, Public Policy, and Law, 11, 570586. doi:10.1037/1076-8971.11.4.570. Steadman, H. J., Deane, M. W., Borum, R., & Morrissey, J. P. (2000). Comparing outcomes of major models of police responses to mental health emergencies. Psychiatric Services, 51, 645649. doi:10.1176/appi.ps.51.5.645. Steadman, H. J., Davidson, S., & Brown, C. (2001). Mental health courts: Their promise and unanswered questions. Psychiatric Services, 52, 457458. doi:10.1176/appi. ps.52.4.457. Stefan, S., & Winick, B. (2005). A dialogue on mental health courts. Psychology, Public Policy and Law, 11, 507526. doi:10.1037/1076-8971.11.4.507. Trupin, E., & Richards, H. (2003). Seattle's mental health courts: Early indicators of effectiveness. International Journal of Law and Psychiatry, 26, 3353. doi:10.1016/ S0160-2527(02)00202-9.

439

United States Government Accountability Ofce (2005). Adult drug courts: Evidence indicates recidivism reductions and mixed results for other outcomes. Washington, D.C. Retrieved from http://gao.gov/products/GAO-05-219. Watson, A., Hanrahan, P., Luchins, D., & Lurigio, A. (2001). Mental health courts and the complex issue of mentally ill offenders. American Psychiatric Services, 52, 477481. doi:10.1176/appi.ps.52.4.477. Winick, B. (2000). Applying the law therapeutically in domestic violence cases. University of Missouri, Kansas City Law Review, 33, 3645. Winick, B. (2003). Therapeutic jurisprudence and problem solving courts. Fordham Urban Law Review, 30, 10551090. Winick, B., & Wexler, D. (2003). Judging in a therapeutic key: Therapeutic jurisprudence and the courts. Durham, NC: Carolina Academic Press. Wyatt, T. (2001, December 10). Threat of jail helping keep mentally ill on medication: Domestic violence court offering program monitored probation.: The Dallas Morning News.