A Court of Refuge Read online

  In a panic, Aaron darted out of the grocery store and collided with Pauline Johnson, an eighty-five-year-old woman. Pauline fell to the ground, hitting her head on the concrete curb with considerable force. She died of head injuries the following day.8

  Aaron was arrested for first-degree murder.

  When Howard Finkelstein, Broward County’s chief assistant public defender, was assigned to represent Aaron, he said that it “changed my life in ways that I couldn’t have imagined.”

  Howard, known as a charismatic and highly skilled defense attorney, thought he knew how the introductory meeting with Aaron’s family would go. He wasn’t prepared for what would transpire at the Wynns’ home in Plantation. He knew how concerned the family would be, given the seriousness of the charge. Howard planned to introduce himself and spend ample time getting acquainted with Aaron’s mother and father. Then, Howard would tell them about the breadth and depth of his criminal defense experience to give them confidence and shift into an explanation of his trial strategy. It was always important to Howard that a defendant’s family understand and feel comfortable with him and his plan. He knew that he would need their cooperation and support to prepare an effective defense for Aaron. He would need their help securing medical records for expert witnesses and to be fully engaged in the court process.

  Recalling that meeting, Howard said, “I can’t believe what I was thinking. I walked into the Wynns’ living room believing that I was going to tell them what I was going to do for their son. I could not have been more wrong.”

  After Jane Wynn opened the front door to their home, she looked Howard in the eyes and politely asked him to sit down. “I need to tell you something,” Jane said. Her eyes were filled with deep sadness as she told Aaron’s story.

  After meeting with Aaron’s family, Howard was consumed with indignation and anger. He felt that he had to do something on a systemic level to prevent further tragedy due to the failings of Broward County’s mental health system. With the aid of assistant public defender Fred Goldstein, a mental health expert, Howard wrote to the Broward County Grand Jury to request a formal investigation of the county’s mental health system.

  In a ten-page letter, Howard detailed the tragic story of Aaron Wynn, Pauline Johnson, and the relationship of these tragedies and his client’s arrest for murder (the charge had been reduced to manslaughter) to his inability to secure mental health care and rehabilitative services. To Howard’s surprise, the grand jury approved his request.

  In November 1994, after an extensive eight-month review of Broward’s mental health system, the grand jury released a scathing 153-page report.9 Among its findings, the grand jury described Broward’s mental health system as “deplorable and chronically underfunded.”10 The scope of the grand jury’s work was broad based and included the criminal justice system. The report also identified the overrepresentation of people with mental illness cycling between jail, emergency rooms, and homeless shelters, and it called for accountability, collaboration, and the need for expanded resources to provide those who suffered from mental illnesses with continuous care.11

  Buoyed by the findings of the grand jury, a small group of criminal justice and mental health stakeholders, headed by Broward Circuit Court Judge Mark A. Speiser, assembled an ad hoc task force to seek solutions to streamline the processing of people arrested with serious mental illness. After several years of meetings and with no consensus in sight, Judge Speiser asked Howard, “What do you want?”

  “I want my own [bleeping] court,” Howard said. “A court of refuge.”

  In that moment, and unbeknownst to me—I was campaigning for judicial office—the task force had met, and the concept for a specialized mental health court had emerged. It would ensure due process and the promotion of individual constitutional rights while balancing public safety considerations. There was no doubt that most judges were not trained to respond to the unique needs and challenges endured by people affected by mental health conditions. Yet, there was no road map, no funding or grants—simply “the will of a community” to improve the criminal justice system’s response to the criminalization of people with mental illness in Broward County.

  When the court began operations, in 1997, in the Broward County courthouse on Southeast Sixth Street in Fort Lauderdale, national data on inmates with serious mental illness were essentially nonexistent. However, a report released by the Bureau of Justice Statistics in 2001 stated that (in 1997) “nearly a third of State inmates and a quarter of Federal inmates reported having some physical impairment or mental condition.”12 Within the year, however, the New York Times published a groundbreaking special report, “Asylum Behind Bars.” Written by Fox Butterfield, the report confirmed what many individuals and families affected by mental illness already knew: US jails and prisons had become, “by default,” our nation’s largest state psychiatric hospitals.13 According to Butterfield, more than one in ten of the two hundred thousand people behind bars in the United States suffered from serious mental illness, which included major depression, bipolar disorder, and schizophrenia.14

  The deinstitutionalization trend that began in the 1960s with the availability of new psychotropic medications, a wave of federal civil rights orders on behalf of patients’ rights, and a congressional study performed by the Joint Commission on Mental Illness and Health was intended to combat the negative effects of mental illness.15 The advancements in mental health treatment and rehabilitation led to optimism and the realization by President John F. Kennedy that people with mental illness and intellectual disorders can live humanely in the community. President Kennedy pointed to the positive research of the joint commission’s final report and outlined, through a series of legislative actions commonly referred to as the Community Mental Health Act of 1963, a new vision for mental health care in America. The act was intended to shift resources away from large state psychiatric institutions toward a community-based approach that would emphasize access to care and rehabilitative services. It pointed to a visionary plan to transform mental health in America, reflecting the belief that persons with mental disabilities deserve “to live in the open warmth of the community.”16

  Tragically, the nation’s loss of President Kennedy a month after he signed the Community Mental Health Act into law created a vacuum in executive branch leadership. The goals of the act—to emphasize access to community-based mental health care, prevention, and rehabilitation—fell victim to the turmoil of the 1960s. Competing priorities to finance the Vietnam War, resistance to neighborhood mental health centers, health insurance restrictions, new civil rights laws regarding civil commitment, and a lack of funding to pay for local resources all undermined the goals of the Community Mental Health Care Act of 1963.17

  As Fox Butterfield noted in his report for the New York Times, “States seized the chance to slash hospital budgets and reduce hospital beds.” For example, the number of beds in state hospitals went from a high of 559,000 in 1955 to 69,000 in 1995.18 “On any given day,” Butterfield wrote, “almost 200,000 people [are] behind bars. More than 1 in 10 of the total are known to suffer from schizophrenia, manic depression or major depression [ . . . ] the three most severe mental illnesses.”19

  In South Florida, for example, as Aaron Wynn’s parents pleaded with state mental health program directors to get Aaron into the South Florida State Hospital in Pembroke Pines, local mental health activists were waging a separate battle for increased spending for state mental health hospital beds. According to the Sun-Sentinel, dozens of people on a waiting list for a court-ordered state hospital bed were being warehoused in a small county crisis unit, which offered no rehabilitation.20 In 1991, Broward County mental health advocates fought again when the number of hospital beds was reduced from 1,200 to 400. According to Sandra Jacobs, who covered the medical beat for the Broward and Palm Beach Sun-Sentinel, “South Florida State, designated for the most severely ill people from Key West to Vero Beach, has fewer than 11 beds for every 100,000 residents.”21<
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  I wondered, What if the judge who presided over Aaron Wynn’s criminal case had understood the contextual nuances of the trend known as the criminalization of mental illness? Would Aaron have been offered treatment instead of incarceration?

  Sitting at the bench in the mental health court after issuing Roger’s diversion order, I called the next case. The next defendant, Mary Stevens, was an elderly woman who appeared to be in her late sixties or early seventies. She had been arrested for trespassing at a gas station and had been in jail for approximately forty-five days. I speculated that she was homeless. I glanced through the court file, which included an order by the originally assigned judge that declared her “mentally incompetent to stand trial.” There were no future court dates or other pleadings and no defense motions for her release. Mary Stevens and her case had fallen between the cracks in the system.

  “Ms. Stevens,” I said, “how are you doing? My name is Judge Lerner-Wren.”

  There was no response.

  I wondered whether she had a hearing impairment. I tried again, using the court microphone. “Ms. Stevens,” I said firmly, “hello . . . can you hear me?”

  I asked Greg Forster, the acting in-court clinician and a highly skilled community case manager, to check on her. Greg, known for his mild manner and boundless compassion, leaned over the jury box to speak with her. We watched to see if she responded to him. As Greg tried to speak to her, I noticed that Mary’s eyes were not moving.

  I yelled for my deputy to call 911. Something was wrong. Already shaken by what had occurred at the prior hearing, we looked at each other in disbelief. How many people did Doug say were on the mental health unit? The individuals whom the court had already seen were in urgent need of mental health treatment or emergency medical care. Clearly, there was an urgency to see as many people as we could in the court, as quickly as possible. According to Human Rights Watch, US prisons and jails are not equipped to address the complex needs of this population.22 What we had witnessed in just two cases clearly supported this assertion.

  Minutes seemed like hours as we waited for the emergency medical team to arrive. Finally, the paramedics rushed into the courtroom carrying a gurney. Two medics unpacked the medical equipment while the others began to triage Ms. Stevens.

  “How long has she been like this?” one of the medics asked.

  “I have no idea,” I responded. “This is how she was when she was brought to the courtroom.”

  I watched as the paramedics lifted her frail, unresponsive frame onto the gurney. There was really no way of knowing how long Ms. Stevens had sat unresponsive in a jail cell, nor how long the traumatic experiences and harsh conditions of living in the street had been draining away the person she had been. How can we know how long someone has suffered when they no longer have the capacity to tell us? How can I say that Aaron Wynn’s suffering was limited to the two years he spent in the hospital, restrained and alone? His suffering, I believe, stretched back to the day of his motorcycle accident, and it continues to this day.

  The first mental health court docket was over. It certainly was not what I had expected; and yet, there was a sense of relief and pride knowing that individuals who needed psychiatric and medical treatment were going to receive care in a therapeutic and more appropriate healthcare setting. As we went our separate ways, I couldn’t help thinking that everyone involved in the new Broward County Mental Health Court had embarked on an unknown journey.

  CHAPTER 2

  The Shackles Come Off

  “Welcome to mental health court,” I said in lieu of the formal “All rise” pronouncement to the open court. The informality is important. The phrase helps to set the tone for a courtroom culture where human dignity, therapeutic justice, and the rule of law coexist. In mental health court, I have learned, small things often can make a big difference.

  Within the first year of the court I began to recognize the depth of emotional pain and desperation of many of the families who came to court seeking help on behalf of their loved ones who were ill. I understood that to humanize justice, court proceedings needed to feel welcoming and hopeful. My goal was to create a sharp contrast to how court process typically was experienced by articulating a warm welcome and by explaining the concepts and principles of psychiatric rehabilitation in simple, easy-to-understand terms, whenever possible. The mission for a court of refuge would be to leverage the law to reach a therapeutic outcome. How I spoke and the way I described the mission of the court needed to be authentic, and the goal of decriminalization had to be demonstrated by words paired with judicial action.

  According to the principles of therapeutic jurisprudence, it is the psychological forces of the court process that can “tip the scales” toward dignity and respect. From the perspective of procedural justice, the perception of fairness is what matters, and defendants must have the opportunity to share their lived experiences with the court so they feel that they have been heard. In terms of communication and court process, there is always a presumption of trauma, meaning that the court process is needed to support the restoration of personhood through the value of dignity. Therefore, the tone of my voice and language needed to reflect that value. An empathic tone coupled with a strength-based approach to recovery would be reaffirmed in continuous messaging by me: “If you want our help to engage in care—we will do everything we can do to support you.”

  I also understood that the courtroom needed to be a classroom. There are so many myths to shatter about mental illness, such as the stigma and the shame that can accompany a diagnosis of mental illness. It was imperative to learn about people’s lives in order to humanize the court process. This was done by asking basic questions, such as “What did you want to be when you were young?” “What are your dreams? Did you go to school?” Through this process, we were subtly putting centuries of discrimination and institutional bias on trial. In a therapeutic court, traditional formalities that have historically defined the court process needed to be recast to humanize justice, not just for the court participants but for the attorneys, court staff, and the community at large.

  Whereas typical courtrooms command a certain degree of awe and respect for traditions steeped in archaic forms of address and formality, the mental health court placed its judge on the level of a provider of human services. The unprecedented informality was often the key factor that allowed our clients to truly divulge their histories, which in turn made it possible for the court to link them to the services they desperately needed.

  I scanned the courtroom to see who was present. I noticed that the court was filled with new referrals, family members, and court observers. I was particularly interested in a petite woman I saw while entering the courtroom. She appeared to be upset, and I asked the deputy if he would escort her up to the bench. I learned that her name was Ellen Boyd, and she was here on behalf of her son, Hayden, who had been arrested for allegedly stealing several packs of batteries from a local pharmacy.

  “Hayden is a good boy,” she said, almost in a whisper.

  “I know this is difficult,” I said, “but we are going to help you.”

  In truth, I shared her emotional pain. I could tell from the arrest paperwork that Hayden was young and struggling. Hayden was twenty-five years old and had been diagnosed with schizophrenia. He had been transferred by the judge in the first appearance court to the Broward County Mental Health Court. According to Rule 3.130 of the Florida Rules of Criminal Procedure, every person arrested must be taken to a judicial officer within twenty-four hours of arrest to be advised of the charges and to make legal findings. When the Broward County Mental Health Court was established, first appearance court was identified as the earliest point in the arrest process to intervene and identify people with mental illness who may qualify for the mental health court and who require psychiatric screening, triage, and swift diversion from the jail system.1

  Today, Hayden was returning to court after having been transferred to the mental health court about a
week earlier. Hayden had been clinically screened and assessed, and the clinical screening indicated that Hayden would meet the legal criteria for involuntary civil commitment. An emergency order for transportation had been entered by the court.

  Hayden appeared confused and in a daze as he entered the courtroom in shackles and handcuffs. He had not posted bond, and technically he was still considered to be in the care and custody of the jail. Because he was no longer dressed in a jail jumpsuit, everyone wondered: Is Hayden a prisoner or a patient? The shackles and handcuffs said “prisoner,” but what he was wearing said “patient.”

  I took a deep breath and grabbed a tissue in case I needed one. These moments are always very difficult for me.

  I asked Hayden’s mother if she needed a tissue. She shook her head no and proceeded to bury her face in a handkerchief and sob. When she recovered, she said, “I can’t bear to see my son in handcuffs. He is a good boy.”

  “Of course he is,” I said. Then I told her that he was going home. “It is important to talk about what we need to do next so Hayden can get well and live a meaningful life.”

  Mrs. Boyd raised her head and listened as I began to explain the basics of mental health recovery, engagement, and treatment planning. I grabbed the nearest legal pad and turned it over to the cardboard side, where I always begin my simplified explanation of the importance of person-centered treatment planning, which is so central to the work of the mental health court.

  I drew a pie chart with several slices and placed a stick figure in the middle of the pie. I marked the first slice “medications” and another slice “talk therapy.” The third slice represented psychosocial services, such as day treatment, community case management, and peer support. The fourth slice included nutrition and fitness; the fifth slice, enrichment activities such as favorite social activities and hobbies, creative pursuits, and spirituality. The sixth slice was for goals related to education, work, and career development.