Why Criminal Defense Attorneys and Mental Health Therapists Need to Work Together Part II
In 2018, Adam Rossen put together an article covering half of my Unified Partnership lecture ← find part 1 here.
In that piece he discussed the ways in which mental health therapists can help educate criminal attorneys and other key players in the criminal justice system for the betterment of their patients. As a unified partnership is a two way street, this month I want to cover how lawyers can help mental health therapists.
1) Education on the Criminal Justice Process from Arrest to Court Proceedings
Many therapists and mental health counselors don’t have a comprehensive understanding of the process their patient has to go through from arrest through navigating the criminal justice system. That’s where attorneys come in. We can provide a detailed overview so that therapists have a better understanding of exactly what their client is going through. This includes understanding how both judges and prosecutors are taught to think.
The Arrest Process in Sourth Florida
The number one thing to remember is that the arrest process is designed with the average person in mind. Most officers are not trained on how to handle a situation involving someone with a mental illness. In fact, even when it comes to certain mental health (Baker Act) and substance abuse laws (Marchman Act), police mix them up. Being arrested is a high stress situation. Officers can already be rough, and if they meet resistance from the person they’re arresting they are more likely to use physical force. Most of the clients I work with already tell me how scary being arrested was, and how it put them into panic mode. If a person already has a mental or emotional disorder it can be that much more intense for them.
Once the cops arrest you, they’re taking you down to the station and putting you in a cell. For most crimes you need to see the magistrate judge, which usually happens within 24 hours. But in some cases it can take more time than that, meaning you could be stuck in a cell for more than one night.
When you finally see the judge, he/she will then set a bond amount and decide whether to:
- Release you on your own recognizance
- Put you on Supervised/Pre-Trial Release
- Release you on probation (which can involve drug testing, a GPS ankle monitor, anger management classes, etc.)
If your patient is put in jail, you want to get them out, or have the family get them out as soon as possible. Jail is not a place you want to leave anybody as it could hurt both them and their case. Aside from the stress of being in that environment, jail has a lot of constraints that can be detrimental to a person’s case:
- Jail rats
- Recorded phone calls
- Lack of communication
A lot of times when a person has a substance abuse disorder, the family wants to leave them in jail as a form of detox, or punishment. This is the worst possible thing to do. You do NOT want to use jail as a detox method. Jail is not a safe place to detox. The level of care a jail is equipped to provide is not what you would want your loved one, or your patient receiving. Also it criminalizes the person for the addiction. A good alternative is to petition the court for a conditional pre-trial release that includes detox. If they fail to comply they’ll still go back to jail.
Once out of jail, your patient will have to await court proceedings.
How Judges & Prosecutors Are Taught to Think in South Florida Criminal Justice System
Judges and prosecutors are taught punishment. They are responsible for the safety of the public, and there is a lot of pressure on them not to make decisions that will endanger the public. They also face a lot of political and media pressure. If a judge lets a defendant off the hook and that person reoffends, it’s the judge’s name that will be all over newspapers the next day. It would be the same for a prosecutor if they made a deal that let that defendant off the hook.
Most judges and prosecutors do not undergo any type of mental health training. That fact shocked one of the therapists at my lecture. She could not understand how a judge, who makes such a critical decision in the course of a patient’s future, could be properly equipped to do so without any type of training. And I agree with her. But now knowing this, she as a therapist is more motivated to provide much more information to the court to educate the judge on exactly what her patient needs.
2) Understanding the Nuances of the Specialized Courts – Such as Mental Health Court and Substance Abuse Court
There are two types of mental health court, one for misdemeanors and one for felonies.
Pioneered by Judge Ginger Lerner-Wren, misdemeanor mental health court is a special division of criminal court that handles cases involving non-violent misdemeanor defendants who are mentally ill or developmentally disabled. Its focus is on treatment, as opposed to punishment. In misdemeanor court cases are typically resolved quickly, and defendants are put on a path towards treatment.
Felony mental health court is also a special division of the criminal court that handles defendants charged with a felony as opposed to a misdemeanor. Unfortunately felony mental health court is more focused on punishment and aims to treat and stabilize defendants so that they can be held accountable for their actions, resulting in more potential pitfalls for your patients. Check out the facts below:
- The average person in felony mental health court spends more than 3 years awaiting justice, compared to just six months for those in regular court.
- Mentally ill people in this court have been deemed incapable of facing their charges, yet they are expected to follow all the rules handed to those in regular court, along with additional conditions.
- Some defendants who miss treatment sessions or mess up a judge’s orders get tagged with ankle monitors, put under house arrest, or put in jail.
- Some defendants get stuck in jail for months because treatment beds aren’t available. Since 2003 the number of mentally ill people in Broward jails has almost doubled.
- Florida law requires felony charges be dropped if a defendant remains incompetent for 5 consecutive years. But the clock restarts anytime a defendant is deemed competent, which can drag a case out for years
3) Mental Health Professionals can Craft Letters on Behalf of Patients
A lot of the time when a defendant is mentally ill, the judge will require a letter from a therapist detailing exactly what treatment the person needs. Because judges see so many of these letters, which usually have the same generalized information/language in them, they become formulaic. And unfortunately formulaic documents are not going to help your patient. There are two main reasons for this:
A formulaic letter does not inspire confidence in a mental health professional. Judges and prosecutors are taught to prioritize protecting the public. If they release a defendant, or agree to a specific plan and something goes wrong (meaning the defendant commits another crime), it’s their reputation on the line. They are the ones who will get blamed. Judge and prosecutors already have a lack of trust in mental health therapists because they are working with (and many times chosen by) the defense attorney. Providing a formulaic document only gives them more reason to distrust you.
As I mentioned earlier in the article,most judges receive no type of mental health training. They don’t know the best course of treatment for a patient. That’s why the more detail, personalization, and factual information you provide demonstrating the effectiveness of the treatment for this particular defendant, the more weight your letter will have on your patient’s behalf. Remember judges and lawyers are focused on evidence, so citing scientific studies is an excellent way to provide proof that a treatment is effective.
Another effective means of helping your client is by going beyond a simple letter to the court and doing a whole biopsychosocial evaluation. Yes this is a more detailed procedure, but there’s no reason you cannot charge your client for it. I’ve had cases where the biopsychosocial has been invaluable. One of the therapists I work with put together one that was about 20 pages in length. It detailed every aspect of the defendant’s life from childhood trauma to his current situation. It gave the judge a much more personalized accounting of who the person was outside of simply “Defendant Jones,” and helped us secure the results we wanted.
Ultimately criminal defense lawyers and mental health therapists want the same thing for their mutual patient/client; for him to have the best chance successfully navigating the criminal justice system so that he can get the treatment he needs to have the best chance at a good future. That’s why it’s imperative that both sides work together to have a greater understanding of how to achieve that result. As I partner with more and more local therapists, I am finding that my clients are seeing even greater benefits than if they were working with just me and other members of my firm.
Read part one of this piece: Why Criminal Defense Attorneys and Mental Health Professionals Need to Work Together Part I; here. In this piece, Adam shares about mental health court in Florida, how mental health professionals can help attorneys better interact with their clients, the importance of establishing trust with prosecutors and judges and – highly important – how to establish a concrete treatment plan for your mental health client which has goals consistent with the criminal justice system that the judge can easily sign off on.
Conclusion: Reach out if you are a Mental Health Professional in South Florida, or someone with a mental illness that was charged with a crime in South Florida
If you are a mental health professional and have any clients with legal issues, reach out to Adam for help with any questions. He can help guide you through the process. Rossen Law Firm began offering Baker Act and Marchman Act services in 2021.
Call Rossen Law Firm’s Offices to arrange a free consultation, or to chat with an attorney about forming a relationship if you are a clinical in the South Florida area.