The sixth in our series of guest columns has been written by Judge Ginger Lerner-Wren. Judge Lerner-Wren is a County Court Judge in the 17th Judicial Circuit, Broward County, Florida. She is a former commissioner of The President's New Freedom Commission on Mental Health, and an adjunct professor of New York Law School, International Human Rights and Disability Law Center. Judge Lerner-Wren speaks internationally and nationally on TJ, mental health and criminal justice.
By: Judge Ginger Lerner-Wren
There has been no greater gift in my judicial career than having the privilege of presiding in a problem-solving (TJ) Mental Health court. In addition, I also preside in a (full-time) traditional misdemeanor criminal court, which for purposes of this article, I will refer to as a court of general jurisdiction, since it is a traditional criminal court division.
When Broward's Mental Health Court began in June, 1997, it was intended to be a criminal justice diversionary strategy for persons with a wide range of psychiatric and/or neurological disorders, arrested on non-violent misdemeanor offenses. The first (TJ) problem-solving court of its kind in the country, the primary goal of The Mental Health Court was diversion from the criminal justice system into community based care, whenever possible. Yet, the court needed a philosophical and pragmatic construct through which its goals, standard of practice and values could effectively be communicated and understood. TJ was adopted for that purpose.
Our first goal was to create a court environment where we could establish a connection with those defendants eligible for diversion and communicate an authentic desire to intervene and help. With an extensive background as an advocate working for persons with disabilities, I believed it was essential to create a trauma-informed court process, which reaffirmed the restoration of personhood and hope of recovery as a constant theme.
In eleven years of operation, our mental health court team has diverted an estimated 7000 persons with mental illness out of our local jail system. Broward.s Mental Health Court has served as a model for federal legislation and for other jurisdictions working to reduce the over-representation of persons with mental illness in America.s jails and prisons.
Over time, with experience and a new found competency in the application of TJ, it was clear to me that the TJ model needed to be retro-fitted into my regular criminal court. I felt very strongly that a defendant.s court experience in this division would significantly improve and take on a new and different light if I offered a therapeutic approach to case disposition. Note, a general criminal division in the State of Florida hears essentially all crimes punishable up to one year in jail and fines per statute. (Excluding, domestic violence battery which in my jurisdiction, is assigned to a specialized DV court.)
I decided to take one simple step. I changed my focus and my language. I communicated and provided the opportunity for the defendant to take a treatment oriented approach to his/her criminal case even though this was not a formalized treatment court. While I had nothing to offer the defendant in the classic treatment court construct (i.e., there was no structured program, no reward or incentive for making this choice per se. Obviously, I had no legal authority to dismiss a criminal charge or reduce charges if a defendant made this election). I was, however, able to redefine the conversation surrounding the court experience, assign it purpose, and with treatment planning assessments for guidance, significantly realign my regular criminal division to be more therapeutically focused and therefore potentially constructive and empowering for the individual.
At first, the criminal defense lawyers appeared confused. They did not understand what I meant. Apparently, no judge had established a dual modality of case resolution, with one being defined in TJ terms, as I did. It represented change. Many lawyers were resistant to having their clients openly engage in personalized "plea" conversations with the court focusing on issues relating to mental health and/or substance abuse treatment and recovery. It meant having to consider and perhaps reveal personal stories relating to painful loss, abandonment, trauma, physical abuse, sexual abuse issues related to suicide, depression, divorce, resulting substance abuse and even perpetration of violence.
In the beginning these conversations seemed more challenging for the lawyers, than their clients. Concerns lingered around clients waiving legal rights or revealing too much. Many lawyers were not used to or comfortable with these types of personal conversations in a courtroom. I reassured them no legal rights would be sacrificed for opting for this approach and further, that these types of conversations were routine in my Mental Health Court. For many it provided an opportunity to learn about the consequences of untreated mental health issues.
TJ in a court of general jurisdiction represents a jurisprudence constitutionally sound, humanistic and flexible in philosophy. Through this TJ approach, both criminal defense lawyers and prosecutors have become more aware and enlightened about the negative affects of unresolved loss and trauma. They better understand the fragility of the human condition, the importance of good mental health and its relationship to the practice of criminal law. There is also the recognition that a treatment approach is not for everyone and that many persons may not be good candidates.
Throughout the years, it has been extraordinary to witness the power of personal transformation when perceptions of victimization are revealed and validated through these conversations. Evidence based research findings relating to the consequences of untreated mental health, women and trauma, suicide and depression, are commonly integrated into court conversations. Education and the undeniable message that treatment works is a constant courtroom theme.
Through the application of TJ in my court of general jurisdiction, routine legal process has been replaced by a new and enlightening legal modality. It is important to note, there is absolute adherence to the rule of law and required legal procedures. Juries are selected, motions and trials are held. Yet, when there is a shift into these treatment related conversations and the desire for help and wellness, the entire court process dramatically evolves into something else. It shifts into an authentic vehicle for personal growth and change where there is trust and acceptance as to what is to be achieved through this form of case disposition. Traditional modalities of punishment and sanction are replaced with restorative sentencing. Consequently, more often then not, sanction is experienced with true grace and humility.
To conclude, in courts of general jurisdiction, TJ can co-exist in a constitutional and procedurally appropriate way. It offers a new dimension to case management and court process. When an individual opts to "take a therapeutic approach" to their criminal case, for example, it is often an intrinsically courageous choice which resonates with personal acceptance and responsibility for ones actions and life as a whole. In turn, their choice is complemented and supported by judicial validation and understanding that centers on the origins of universal human experience which in turn may have contributed to the criminal behavior which led them to this consequence and this experience.
For many, this approach is difficult. Yet it can be powerfully liberating. Through these courtroom conversations often supported by court ordered clinical assessment and treatment plans, years of pain and denial are dramatically confronted. With TJ and treatment-oriented tools the concept of sentencing is seamlessly converted from an anti-therapeutic punishment into a purposeful sanction, which at the very least is understood as intending to promote recovery, public safety and personal empowerment. I strongly believe, through this process countless lives have been altered and patterns of criminal recidivism broken. All in a court of general jurisdiction.