A Court of Refuge Read online

  I observed Mr. Evans as he sat in the middle row of an otherwise nearly empty courtroom; clearly he was extremely fearful, and I could not help but be concerned. I watched as he quietly gasped for air in a failed attempt to hold back tears. I could not tell which court division he was scheduled to appear in. He was either a late comer to the mental health court or an early arrival for the regular criminal division. In either case, it was evident that he required assistance.

  In regular court divisions, where the courtrooms operate in a more formal manner, I would expect a court deputy to check on the welfare of this person, if he or she had detected a problem. And if there was indeed a problem, I believe that a court deputy would bring it to the judge’s attention. More than likely, however, I expect that the person would probably tell the deputy that everything was fine so as not to draw attention to himself or disrupt the proceedings. As noted by David B. Wexler, the cofounder of therapeutic jurisprudence, judges and other members of the legal system often have been aware of the impact of the legal system on individual cases—for example, a judge will offer a witness who is overcome with emotion a brief recess; or a defendant will be permitted to settle a case to avoid the undue stress of the court process. But with the justice innovation of therapeutic jurisprudence came a “general theory” of the impact of the legal process upon a court participant’s well-being and its implications for achieving restorative outcomes.1

  Since this was a therapeutic and person-centered courtroom, and the session had not begun, I felt compelled to check on him myself. I sat down next to him while my court deputy kept watch.

  “Sir, can we talk?” I asked. I did not wait for a response but immediately asked another question: “What’s wrong. Can I help you?”

  “I just lost my job and our home is about to go into foreclosure,” he cried. “I have tried everything. I am fearful for my family.” He paused and gulped before he said, almost in a whisper, “I feel like giving up.”

  I sat in silence as Mr. Evans began to sob. It was clear to me that in this state he did not have the emotional capacity to participate in a court hearing and needed a mental health professional. I told him that I would be right back and returned to the bench.

  I asked Digna, my court clerk, to look up Mr. Evans’s case on the docket. She discovered that he was not in the mental health court. He had been charged with petit theft and assigned to my regular criminal division.

  As presiding judge I had several options. I could provide him information on where to go for mental health services and reschedule his court date for another day. Yet, given his deep level of emotional distress and his comment that he felt like giving up, I did not think that leaving the situation in its current state was appropriate.

  With a heightened sense of alarm, I decided to call Henderson Behavioral Health Center’s mobile crisis team. There have been many occasions when I needed to call the mobile crisis team to the courtroom. This is particularly true when an individual would come to court alone, in obvious distress and crisis, and I would have no legal authority to transport him or her to a psychiatric hospital or receiving facility for evaluation. Like Michael Evans, who sat on the court bench in tears, I could have no idea of the depth of his despair or whether he was contemplating harming himself. And I learned many years ago that these situations must be taken very seriously. I reflected on an earlier case when a mental health court defendant tried to see me and was turned away.

  Harold Simmons was chronically homeless. When he showed up unexpectedly in the middle of jury selection for my criminal division, I did not know who he was. As he tried to enter the courtroom, he was immediately intercepted by the court deputy, who ushered him into the hallway so as not to disrupt the trial.

  After a few minutes, the deputy returned to the courtroom. When court recessed, I inquired about the person who had walked in. “Judge, his name is Harold Simmons. He was in your mental health court several years ago and asked if he could speak with you. I explained that you were in trial and would be unable to speak to him.”

  I nodded and speculated that it was probably a minor matter and refocused my attention on the trial.

  Within a matter of weeks, alarming news about the emerging local opioid crisis broke across the state.2 More than a decade later, the opioid crisis in America and the state of Florida has become a national public health crisis. In November 2016, Governor Rick Scott declared a state of emergency in order to draw down federal funds and raise the alarm in Florida that the opioid crisis had reached a critical level. According to NBC News, “The Governor of Florida officially declared the opioid epidemic a public health emergency—some four years after it began cutting a deadly swath through the Sunshine State.”3 Governor Scott’s declaration has allowed the state to tap more than $54 million in US Department of Health funds.

  One morning about a week after the governor’s declaration, the conversation in the mental health court focused on the urgent need for a strategic public health response and additional detox and drug treatment resources in the community to combat the crisis.

  “That is so true, Judge!” exclaimed a woman named Sylvia, who was sitting in a wheelchair next to the jury box. In her mid-fifties, Sylvia was homeless and had been arrested for trespassing. In an obvious need to share her loss, she continued, “Just last week, my friend Harold Simmons was found dead on a bus bench. He died from a drug overdose.”

  The name Simmons triggered a memory. I thought of the man who had wanted to speak to me a week before. I wondered, with dread, if that had been him. A sinking feeling crept from my stomach to my chest: That must have been him. I sat in shock. What if I had stopped the proceedings to speak to him? Or, simply asked him to wait in the courtroom until I could speak to him?

  I wondered whether this tragedy could have been avoided.

  When the session concluded, I met with my court deputies. I instructed them to please speak to anyone coming to the courtroom who wanted to speak with me and to ask them the purpose of their visit. It wouldn’t matter whether they had a case pending before the court. The deputies would always make an inquiry as to whether a person required assistance. Then, he or she would determine how to respond.

  As I explained this new policy, the reason why it was needed hung heavily in the room. Speaking directly but softly, I realized that I was talking about the possibility that a person may need immediate attention. It was a painful and transformative moment.

  It has been eight years since the court began, and in this moment, I realized that Howard Finkelstein’s vision to create a court of refuge had come to fruition in a way we had not foreseen.

  Since that time, an estimated 150 people have come to the courtroom in need of services or in the middle of a mental health crisis. If necessary, I take a break from proceedings to address their problems and to avoid another situation like that of Harold Simmons. If that is not possible, I ask JoAnne Capiello, my judicial assistant, to see whether Aisha McDonald from Chrysalis Behavioral Health Center was in the building and request that she come to assist the person.

  If I suspect that crisis services are necessary, I call Henderson’s mobile crisis team to the courtroom. For this option, however, the person must be willing to wait—and often negotiation is necessary to persuade the person to stay until the team arrives. We have learned that people are more apt to wait when I personally invite them to observe the activities of the court.

  The clinicians who make up Henderson’s mobile crisis team are specially trained in techniques to de-escalate crises; their clinical objective is to assess and manage the crisis. Their understated dress—casual clothes such as jeans, T-shirts, and sneakers—matches their mild manners when they interact with the public, law enforcement, or anyone in the Broward County Mental Health Court. They are the ultimate determiners of who requires emergency mental health attention. After screening and consultation, they may recommend that the person seek mental health care on an outpatient basis.

  The team goes anywh
ere within the county. In fact, one weekend as I was getting my hair done at a local hair salon, I heard yelling emanating from the rear of the salon. As my attention turned to see what was happening, I observed an elderly woman behaving erratically. I walked over to get a closer look, and the woman appeared not to be making sense. I asked the salon manager not to call the police but to allow me to call the mobile crisis team.

  Since the manager knew about my work in the court, she appreciated my assistance and allowed me to make the call. Fortunately, they were not far away and arrived within minutes.

  When the team entered the salon, my head was covered with layers of tin foil. When the team members saw me, they smiled and proceeded to speak to the woman in distress.

  After a few minutes, they helped the woman exit the salon and confirmed that she was going to the hospital for evaluation. The experience provided years of comic relief, as I joked that team members were under oath not to publicly talk about the judge’s hair.

  As I returned to considering Michael Evans, I considered how to suggest to him that I thought the mobile crisis team needed to be called. I hoped he would agree and was concerned as to whether Mr. Evans would agree to wait for the team to arrive. Broward County has only one mobile crisis team to serve an estimated population of 1.8 million people, a situation that I hope will improve soon. In fact, Henderson Behavioral Health Center was recently awarded a $21.9 million grant by the Florida Department of Children and Families to establish a countywide centralized receiving system designed to expand access to mental health and crisis services so people like Harold Simmons and Michael Evans won’t ever be forced to wait outside closed doors.4

  I calmly took a seat next to Mr. Evans and handed him some tissues. “Mr. Evans, I’m sorry you have been going through such a difficult time. I think it would be a good idea for me to call the Henderson crisis team, so that you can get some help now. I would greatly appreciate you waiting for the Henderson team to arrive. I think it would be helpful if you have the chance to explain to them how you are feeling.”

  I let Mr. Evans know that they usually arrive within thirty minutes, but it could take longer. The estimate, I hoped, was conservative. I told him that I would call to confirm the team’s timeline. I asked him if this was acceptable. I could see that he was thinking it over, the details of time versus the trouble of staying here with no answers for at least another half hour, another eternity, of anxiety and worry. At this point, I got the sense that given the weight of his distress, time was of little consequence. As I spoke quietly on the line with the Henderson crisis team, I watched Evan’s face. His expression voiced concern, but he waited until I confirmed the team would be there in less than fifteen minutes. Then, he told me quietly that it was.

  I returned to the bench and called Henderson.

  When problem-solving courts emerged in 1989, they brought the tenets of therapeutic jurisprudence with them, even though it was not a new concept. For many years, the law professors David B. Wexler and Bruce J. Winick, pioneers in the law reform movement of therapeutic jurisprudence, had long envisioned the expansion of therapeutic justice to traditional courts of general jurisdiction. This was a goal I shared with them, especially as society becomes more complex and the provision of mental health and substance abuse treatment services cannot keep up.

  One day, as I listened to the assistant state attorney in my regular criminal division convey a plea offer to a young woman at her sentencing hearing, I wondered, What exactly is the difference between the mental health court and my regular criminal division? Most times I find myself taking a therapeutic approach to my role as judge in both courts.

  The defendant, Linda Withers, in her mid-thirties, was employed as a highly successful executive for an international marketing firm. I listened as the prosecutor pronounced the conditions of the sentence that included thirty days in jail. This was Ms. Withers’s second driving-under-the-influence offense within the past five years. As I reviewed the arrest affidavit and her Florida driver’s license record, something did not sit right with me.

  Ms. Withers had a successful career and was well educated. More important, she had no other criminal history. Furthermore, other than the DUI charges, her driving record was clean. I called the attorneys to the bench for a sidebar conference to discuss the plea offer in a more limited setting.

  The defense attorney and prosecutor walked around to the side of the witness stand as I stepped down from the bench to consult with them. I explained to them that my work in the mental health court led me to think that Ms. Withers may need a psychosocial evaluation to determine whether she is suffering from unresolved trauma and in need of a therapeutic approach to her case. I was concerned about the recent driving-under-the-influence arrests and asked whether she needed more intensive mental health and alcohol treatment interventions. I added that, from a behavioral health perspective, if she did not receive the comprehensive care she obviously needed, there could be a greater potential for her to re-offend.

  I reviewed basic research findings from the ACE study and the consequences of violence and trauma.5 I suggested that Ms. Withers be screened and evaluated by Carolyn Gallichio of Advocate Counseling to act as an expert and offer treatment recommendations to the court. Ms. Gallichio was a specialist in trauma-related care and an approved school provider of programs to combat driving under the influence of alcohol.

  Both parties in the case, the state attorney’s office and Ms. Withers’s defense attorney, welcomed the court’s recommendation, and the case was reset—rescheduled for a new date—to allow a pre-sentencing evaluation.

  Within ten days, Ms. Withers’s case was re-called. Ms. Gallichio appeared along with Ms. Withers, her counsel, and the prosecution. Ms. Gallichio was sworn in to provide testimony under oath by the court deputy, and the hearing began. She had prepared a fourteen-page psychosocial report for the court. As I began to review the evaluation, Ms. Gallichio stated, “Judge, I want to let you know that your instincts were correct. Ms. Withers and I spent several sessions together. You will note as you review the report that there are ‘events’ that were disclosed that Ms. Withers has not had the opportunity to address from a psycho-therapeutic level. Ms. Withers has agreed to a long-term treatment plan and she is highly motivated to engage in this process.”

  Although my instincts may have been correct, I was not prepared for the disturbing facts in Ms. Withers’s background contained in the report. It was evident to me as I read the report to myself that Ms. Withers had suffered serious neglect and physical abuse as a child. The youngest of three children, the report revealed that her mother was a victim of domestic violence. Her mother divorced Ms. Withers’s father when Linda was ten years old, then remarried a man with a severe alcohol problem. Her mother did her best to shield the children from harm and to promote their education. However, Ms. Withers reported that at the age of fourteen she was molested by a coworker of her stepfather’s when her mother was away visiting relatives. Per the report, Ms. Withers had never told her mother about the incident or emotionally addressed the history of domestic violence in her family.

  Once I finished reading the report, I looked up at the parties and realized the importance of taking a therapeutic approach in my regular criminal division. How could I offer a therapeutic approach in one division and not the other?

  “Ms. Withers,” I said, “I know it took a great deal of courage for you to go through this evaluation process.”

  “Thank you, Judge. It was the first time I had ever had the opportunity to reflect on my childhood and adolescence. It was surprising how somehow in my life, I just buried these awful experiences like they never happened. I suppose the time is right, as Carolyn explained to me, to heal the wounds I have been carrying around for so many years.” She paused, as if to take a deep breath, then added, “I believe I’m ready.”

  As the conversation shifted to the sentencing recommendation, Ms. Gallichio said, “Judge, in light of the traumatic history revealed i
n the report, it is my suggestion to the court that an alternative to incarceration be considered. I suggest a therapeutic, trauma-informed residential program. I believe that a jail sentence will be re-traumatizing and could worsen Ms. Withers’s condition. I do not believe this is in the best interests of public safety to the community or the defendant. I also believe, based on my evaluation, that Ms. Withers should be referred to a psychiatrist for further psychiatric evaluation. I suspect her condition may require medication management.”

  “Thank you, Ms. Gallichio,” I replied. “I would ask the state attorney and defense counsel to renegotiate the plea offer and sentence in this case to identify a residential rehabilitation program, as an alternative to incarceration, and take a trauma-informed approach to Ms. Withers’s case in order for her to face her pain and fears, which have been buried for so many years.”

  In 1998, the National Association of State Mental Health Program Directors adopted a policy statement about the lived experience of trauma.6 The statement said in part, “It should be a matter of best practice to ask persons who enter mental health systems, at an appropriate time, if they are experiencing or have experienced trauma in their lives.”7 According to the Substance Abuse and Mental Health Services Administration, “Trauma results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or threatening and that has lasting adverse effects on the individual’s functioning, and physical, social, emotional, or spiritual well-being.”8

  My experience in the mental health court, together with the data on the high prevalence of trauma in the criminal justice system, made me realize that it was imperative to offer a trauma-informed approach in my regular criminal division, particularly at critical points such as plea negotiations and sentencing hearings. For example, the research demonstrates that an estimated 85 percent of incarcerated women have experienced sexual or physical abuse as a child or adolescent.9 Further, surveys showed that large percentages of men and women participating in jail diversion programs reported having experienced a significant traumatic event prior to their incarceration.10