“The times they are a-changing.” — Bob Dylan
The human rights and criminal justice debacle pertaining to the criminalization of persons with serious mental illness in the U.S. continues to wreak social and economic havoc. Yet the tides are beginning to turn as more judges in the U.S. and around the world choose to apply alternative justice philosophies, such as Therapeutic Jurisprudence (TJ). TJ is a revolutionary and global law reform philosophy developed by two visionary mental health and disability law professors, David B. Wexler and the late Bruce J. Winick, who had a shared vision that courts could act as therapeutic agents. The TJ movement has expanded to courts of general jurisdiction, as TJ in the mainstream celebrates its second year.
Recently, Australian Behavioral Health Legal Researcher Michele Edgely published her second research article on mental health courts, “Solution Oriented Courts and Therapeutic Jurisprudence.” After surveying 400 mental health courts in the U.S. and other international mental health courts. She found that when mental health court TJ fidelities are applied correctly by judges, these therapeutic courts, which offer treatment over jail, evidence positive outcomes in reducing recidivism, cost savings and the promotion of positive mental health outcomes. Further, and equally significant mental health courts have the capability of informing mainstream courts about the significance of understanding the implications of behavioral health.
What is the relationship between the criminalization trend and need to humanize justice for persons with mental health disabilities? One only needs to turn to the extensive body of legal scholarship by internationally-recognized mental health disability law and human rights professor Michael Perlin for the answer — sanism. As defined by professor Michael Perlin in his article “Sanism and the Law”:
Sanism, an irrational prejudice against people with mental illness, is of the same quality and character as other irrational prejudices such as racism, sexism, homophobia, and ethnic bigotry that cause (and are reflected in) prevailing social attitudes. It infects both our jurisprudence and our lawyering practices. Sanism is largely invisible and largely socially acceptable.
According to Perlin, “This pattern of prejudice against mentally disabled individuals keeps them from receiving equal treatment under the law” (see The Hidden Prejudice).
Last week, Professor Michael Perlin retired from New York Law School, where he taught and directed its mental health disability law and international human rights program for over 30 years. On a personal note, he has been the human rights and disability rights law consultant to Broward’s Mental Health Court since its inception. His generosity of spirit in scholarship and consultation has helped create the first formalized human rights oriented problem solving court in America. Where dignity and aspirational goals of UN human rights covenants for persons with disabilities helped shape the values and philosophical legal framework of Broward’s model. This week, the State of South Carolina proposed legislation to expand mental health courts in its state. With this proposal comes another opportunity to further justice — in the hope that “the times they are-a changin.”
Judge Ginger Lerner WrenProfessor Michael PerlinMichelle EdgelyTherapeutic JurisprudenceMental Health Courts