'Theorizing Mental Health Courts"

The title of this post is the title of this new article by E. Lea Johnston that is now available via SSRN. Here is the abstract:

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states.  This article examines the two utilitarian justifications proposed by mental health court advocates -- therapeutic jurisprudence and therapeutic rehabilitation -- and finds both insufficient.  Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the ability of therapeutic rehabilitation to offer sufficient theoretical grounding depends on the validity of the assumed link between mental illness and crime.  In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism.  Drawing upon social science research, this article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts.  The article concludes by identifying alternative theories that may justify these courts.