In July, I had the opportunity to attend a seminar called “Mental Health Issues & the New York States Courts 2015: Understanding Risk,” offered by the Practising Law Institute (PLI), a nonprofit continuing legal education and professional business training organization. PLI is bronze sponsor of Pro Bono Net’s work and Pro Bono Net is pleased to promote PLI’s efforts to provide pro bono training for the access to justice community, reflecting its deep commitment to the public service work of the legal profession.
The New York State courts utilize various risk assessment tools to determine the appropriate level of services, supervision and treatment that should be provided to those with mental health issues that find themselves in the justice system. PLI’s seminar in July addressed these risk assessments and their integration into the justice system of New York.
The percentage of people in state prisons local jails that meet the criteria for severe mental illness is almost triple that of the general population. Without proper treatment, many are leaving incarceration much worse off than when they started. For many years policymakers and practitioners have sought ways to expand options, treatment, and alternatives to traditional incarceration to give people a solid chance at rebuilding their lives.
The underlying assumption behind many of these strategies is that the primary reason mentally ill persons became embroiled in the criminal justice system is a lack of treatment for their illness. While new strategies and programs have decreased recidivism and assisted the mentally ill as they reintegrate into society, recent studies show that the base-line assumption is incorrect.
In 2010, studies found no direct correlation between the mental health of a person and their rate of recidivism after going through one of the alternative programs. What they found was that while treatment was helpful and necessary, mental illness was not the primary cause of recidivism or criminal activity. While mental illness is a contributing factor, the attributes involved in determining the risk of recidivism for mentally ill persons are actually the same as those for non-mentally ill persons. The risk factors include a history of antisocial behavior, antisocial personality pattern, antisocial thoughts and attitudes, antisocial associates, family or relationship instability, poor performance at work or school, few leisure or recreational activities, and substance abuse.
Armed with this new information, many policy makers and advocates are supporting a new model that focuses on a consideration of mental health, substance abuse and criminogenic risk factors to determine the correct level of supervision and services for offenders with behavioral health needs. This intersection between accountability and treatment is a difficult rope to walk. There are so many variables at play that each case needs to be evaluated and a decision made bearing in mind as many factors as possible. PLI’s seminar addressed the risk assessment mechanisms used by the New York courts system to address this need.
The morning panels were devoted to exploring two different types of risk and how they relate to mental illness. The first session focused on the relationship between violence and mental illness, examining the current research, tools used for assessment and legal standards the New York courts use to assess dangerousness. Assessment tools are used to determine the likelihood that the offender will engage in violent acts against himself or others. If there is a risk of violence the courts have the ability to reduce or remove that risk through the services developed in addition to, or as an alternative to, incarceration.
The second session focused on the risks of criminal behavior and activities, the risk-needs-responsivity model, and a new framework for integrating the risk-needs-responsivity model with behavioral health needs. The risk-needs-responsivity model is a framework developed in the 1980’s to ensure that the level of supervision matches the offender’s risk of reoffending (risk), that type treatment and assistance provided matches the offender’s mental and physical health needs based on specific risk factors (needs), and that the level of treatment and assistance provided matches the level the offender will positively respond to (responsivity). This system is used in the New York State courts to assess the services and supervision the system should provide to an offender in order to rehabilitate the offender.
The first afternoon session was made up of four presentations examining examples of how risk assessments are used in NY. The first focused on the risk of failing to appear in court, including a discussion of the research behind bail recommendations in courts and a pilot program for supervised release of defendants who would otherwise be detained while awaiting their trial. The second addressed recommendations of the Mayor’s Task Force on Behavioral Health and the Criminal Justice System that assess the risk of reoffending and/or a failure to appear in court. The third examined a new program that assesses the risk of failure to appear in court and/or reoffending in order to identify eligible pretrial detainees at Rikers Island. The last described how risk and needs assessments are used to determine probation supervision levels.
The last session of the day looked at the ethical and policy considerations involved in using risk assessments in the court systems. Topics included a consideration for mental health professionals and lawyers on determining whether to break confidentiality when a client presents a risk of committing a violent or criminal act, as well as the differences in standards of professional responsibility for lawyers and mental health professionals in representing or treating an offender with mental illness. Ethical issues for prosecutors in cases involving defendants with mental illnesses, and concerns in regards to applying risk assessments created as an evaluation of probabilities across a wide range of people to an individual, were also major topics.
The morning sessions’ panels included Melissa Lee Mazzitelli, Esq., Virginia Barber Rioja, Ph.D., Joyce Kendrick, Esq., and Merrill Rotter, MD, and was moderated by Carol Fisler, Esq.. The first afternoon session panel was comprised of Sharun Goodwin-Jones, Trish Marsik, Jerome E. McElroy, and John Volpe. The final panel included Julian Adler, Esq., David Kelly, Esq., and Merrill Rotter, MD. The afternoon session panels were moderated by Colleen King, Esq., and Margaret Martin Esq. respectively.
The PLI seminars are comprehensive and informative, focusing on the latest research and contributions from the most experienced names in the field. Many are eligible for CLE credit.
At the core of Practising Law Institute’s mission is its commitment to offer training to members of the legal profession to support their pro bono service. PLI offers pro bono training, scholarships, and access to live programs, Webcasts, and On-Demand archived programs, as well as an extensive Pro Bono Membership program. For more information about PLI’s pro bono programs and activities, please visit www.pli.edu/probono. Follow PLI’s Pro Bono Group on LinkedIn, and on Twitter @ProBonoPLI.