By Sam Whitehead, Kaiser Health News
GAINESVILLE, Ga. — In early December, Donald Brown stood nervously in the Hall County Courthouse, concerned he’d be sent back to jail.
The 55-year-old struggles with depression, addiction, and suicidal thoughts. He worried a judge would terminate him from a special diversion program meant to keep people with mental illness from being incarcerated. He was failing to keep up with the program’s onerous work and community service requirements.
“I’m kind of scared. I feel kind of defeated,” Brown said.
Last year, Brown threatened to take his life with a gun and his family called 911 seeking help, he said. The police arrived, and Brown was arrested and charged with a felony of firearm possession.
After months in jail, Brown was offered access to the Health Empowerment Linkage and Possibilities, or HELP, Court. If he pleaded guilty, he’d be connected to services and avoid prison time. But if he didn’t complete the program, he’d possibly face incarceration.
“It’s almost like coercion,” Brown said. “‘Here, sign these papers and get out of jail.’ I feel like I could have been dealt with a lot better.”
Advocates, attorneys, clinicians, and researchers said courts such as the one Brown is navigating can struggle to live up to their promise. The diversion programs, they said, are often expensive and resource-intensive, and serve fewer than 1% of the more than 2 million people who have a serious mental illness and are booked into U.S. jails each year.
People can feel pressured to take plea deals and enter the courts, seeing the programs as the only route to get care or avoid prison time. The courts are selective, due in part to political pressures on elected judges and prosecutors. Participants must often meet strict requirements that critics say aren’t treatment-focused, such as regular hearings and drug screenings.
And there is a lack of conclusive evidence on whether the courts help participants long-term. Some legal experts, like Lea Johnston, a professor of law at the University of Florida, worry the programs distract from more meaningful investments in mental health resources.
Jails and prisons are not the place for individuals with mental disorders, she said. “But I’m also not sure that mental health court is the solution.”
The country’s first mental health court was established in Broward County, Florida, in 1997, “as a way to promote recovery and mental health wellness and avoid criminalizing mental health problems.” The model was replicated with millions in funding from such federal agencies as the Substance Abuse and Mental Health Services Administration and the Department of Justice.
More than 650 adult and juvenile mental health courts were operational as of 2022, according to the National Treatment Court Resource Center. There’s no set way to run them. Generally, participants receive treatment plans and get linked to services. Judges and mental health clinicians oversee their progress.
Researchers from the center found little evidence that the courts improve participants’ mental health or keep them out of the criminal justice system. “Few studies … assess longer-term impacts” of the programs “beyond one year after program exit,” said a 2022 policy brief on mental health courts.
The courts work best when paired with investments in services such as clinical treatment, recovery programs, and housing and employment opportunities, said Kristen DeVall, the center’s co-director.
“If all of these other supports aren’t invested in, then it’s kind of a wash,” she said.
The courts should be seen as “one intervention in that larger system,” DeVall said, not “the only resource to serve folks with mental health needs” who get caught up in the criminal justice system.
Resource limitations can also increase the pressures to apply for mental health court programs, said Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers. People seeking help might not feel they have alternatives.
“It’s not going to be people who can afford mental health intervention. It’s poor people, marginalized folks,” she said.
Other court skeptics wonder about the larger costs of the programs.
In a study of a mental health court in Pennsylvania, Johnston and a University of Florida colleague found participants were sentenced to longer time under government supervision than if they’d gone through the regular criminal justice system.
“The bigger problem is they’re taking attention away from more important solutions that we should be investing in, like community mental health care,” Johnston said.
When Melissa Vergara’s oldest son, Mychael Difrancisco, was arrested on felony gun charges in Queens in May 2021, she thought he would be an ideal candidate for the New York City borough’s mental health court because of his diagnosis of autism spectrum disorder and other behavioral health conditions.
She estimated she spent tens of thousands of dollars to prepare Difrancisco’s case for consideration. Meanwhile, her son sat in jail on Rikers Island, where she said he was assaulted multiple times and had to get half a finger amputated after it was caught in a cell door.
In the end, his case was denied diversion into mental health court. Difrancisco, 22, is serving a prison sentence that could be as long as four years and six months.
“There’s no real urgency to help people with mental health struggles,” Vergara said.
Critics worry such high bars to entry can lead the programs to exclude people who could benefit the most. Some courts don’t allow those accused of violent or sexual crimes to participate. Prosecutors and judges can face pressure from constituents that may lead them to block individuals accused of high-profile offenses.
And judges often aren’t trained to make decisions about participants’ care, said Raji Edayathumangalam, senior policy social worker with New York County Defender Services.
“It’s inappropriate,” she said. “We’re all licensed to practice in our different professions for a reason. I can’t show up to do a hernia operation just because I read about it or sat next to a hernia surgeon.”
Mental health courts can be overly focused on requirements such as drug testing, medication compliance, and completing workbook assignments, rather than progress toward recovery and clinical improvement, Edayathumangalam said.
Completing the programs can leave some participants with clean criminal records. But failing to meet a program’s requirements can trigger penalties — including incarceration.
During a recent hearing in the Clayton County Behavioral Health Accountability Court in suburban Atlanta, one woman left the courtroom in tears when Judge Shana Rooks Malone ordered her to report to jail for a seven-day stay for “being dishonest” about whether she was taking court-required medication.
It was her sixth infraction in the program — previous consequences included written assignments and “bench duty,” in which participants must sit and think about their participation in the program.
“I don’t like to incarcerate,” Malone said. “That particular participant has had some challenges. I’m rooting for her. But all the smaller penalties haven’t worked.”
Still, other participants praised Malone and her program. And, in general, some say such diversion programs provide a much-needed lifeline.
Michael Hobby, 32, of Gainesville was addicted to heroin and fentanyl when he was arrested for drug possession in August 2021. After entry into the HELP Court program, he got sober, started taking medication for anxiety and depression, and built a stable life.
“I didn’t know where to reach out for help,” he said. “I got put in handcuffs, and it saved my life.”
Even as Donald Brown awaited his fate, he said he had started taking medication to manage his depression and has stayed sober because of HELP Court.
“I’ve learned a new way of life. Instead of getting high, I’m learning to feel things now,” he said.
Brown avoided jail that early December day. A hearing to decide his fate could happen in the next few weeks. But even if he’s allowed to remain in the program, Brown said, he’s worried it’s only a matter of time before he falls out of compliance.
“To try to improve myself and get locked up for it is just a kick in the gut,” he said. “I tried really hard.”
KFF Health News senior correspondent Fred Clasen-Kelly contributed to this report.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.