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By Shirin Forootan
Last year I was honored to be appointed Chair of the OCBA Lawyer Well-Being Task Force (formerly Amicus Alo), and ever since, I often ponder what we can do as a bar association to help our lawyers overcome personal and life struggles, both for their own sakes and for the sakes of their law practices and clients. I will admit this sometimes feels like an insurmountable challenge, but one that I nonetheless am eager and willing to take on because of the dire consequences of not thinking about these issues— depression, substance abuse, and suicide, to name a few. From my perspective, if our bar association can help even one of our members live a fuller life, then the task force’s efforts are worth it.
I recently had the honor of interviewing one extraordinary Florida judge who inspired and encouraged me (and no doubt so many others) in the quest to bring mental health issues to light. She confirmed that when we begin with simple compassion and open dialogue on the subject of mental health issues, rather than resorting to shame, stigma, and stereotypes on this topic, the seemingly impossible becomes not only possible, but a resounding success.
Below is my interview with the Honorable Ginger Lerner-Wren, a Broward County, Florida judge who presided over the nation’s first mental health court.
Shirin: What is the backstory of the creation of the nation’s first mental health court?
Judge Lerner-Wren: Before I came to the judiciary, I was doing civil rights work for persons with disabilities. I was working for an organization now known as Disability Rights Florida. While I was doing my advocacy work in the community in the early 1990s, there were a number of mental health problems that were affecting Broward County’s criminal justice system. One problem, for example, was the overrepresentation of people being arrested with serious mental illness and other kinds of cognitive and neurological disorders. There was also significant jail overcrowding and a number of deaths in jail by suicide.
One high-profile case involving a young, upper-middle class south Florida man named Aaron Wynn essentially led to the creation of Broward’s mental health court. Aaron was preparing to go off to college when he was tragically involved in a very serious motorcycle accident that left him debilitated by a severe brain injury. At the time, his parents did everything they could to find mental health care and rehabilitative services for him, but to no avail. Aaron’s condition continued to worsen. One day he had a negative encounter with a police officer, and he was arrested for assaulting an officer. The judge in that case committed him to a forensic hospital in northern Florida after making a finding that he was incompetent to stand trial. Aaron was held in solitary confinement, strapped to a gurney for two-and-a-half years. When he was released without notification to his parents and without a discharge plan for the community, his parents were back in the same nightmare as they previously were—trying to find services for him, except this time his condition had worsened: he was diagnosed with PTSD and schizophrenia as a result of his treatment in the Florida hospital.
One day, Aaron was in a supermarket checking out at the cashier when he had a panic attack. He abruptly ran out of the store and collided with an eighty-five-year-old woman who fell to the pavement and died of those injuries the next day. Aaron was charged with murder. A charismatic public defender by the name of Howard Finkelstein was appointed to represent him. Howard met Aaron’s parents and learned their horrible plight of trying to get help for their son but being completely thwarted no matter where they sought help. Howard realized that his office never really understood that their clients needed treatment but couldn’t get the access to care in light of the scarcity of mental health resources in the community. And this phenomenon was precisely contributing to the arrest cycles of their clients.
Howard decided to write a request for a grand jury investigation of Broward County’s mental health system in 1993. In 1994, after eight months, the Broward grand jury issued a scathing 153-page report finding that the Broward County system of care was leaderless, deplorable, and “no one was accountable to anyone for anything.” A criminal justice mental health task force was formed, led by a circuit judge, with the goal of trying to use the information gleaned from the grand jury report to streamline the process of treating mental illness in our local jail. But, without any funding or grants, the task force was not able to come up with a viable solution. The frustrated chair of the task force eventually asked Howard what was it that he ultimately wanted, and he said, “My own mental health court.”
Around this time I was running for the judiciary, and I won without opposition in 1996. There was a sense that I had a specialized expertise that could be applied to the creation of a problem-solving mental health court, which was launched in 1997.
Shirin: From a legal perspective, what are the elements of a mental health court?
Judge Lerner-Wren: Our mental health court is a misdemeanor court. It is established by administrative order by the Chief Judge of the 17th judicial circuit, and is a subdivision of my regular criminal division. It is a part-time court. It comes under the umbrella of problem-solving courts, which were created uniquely to solve vexing social problems that land on the doorsteps of the courthouse. These courts generally apply a law reform science of therapeutic jurisprudence.
Shirin: What does “therapeutic jurisprudence” mean?
Judge Lerner-Wren: Therapeutic jurisprudence is a theory developed by two law professors, David Wexler and Bruce Winick, who acknowledged that the court process is often anti-therapeutic to the individual’s experiencing that process and that oftentimes there is not a perception of fairness or because of the rigidity and formality of court process, individuals often do not feel as if they were listened to. When a judge adjudicates a ruling, oftentimes individuals walk out of the courthouse feeling that they have been either maltreated or misunderstood. And often that impacts compliance with court orders which could have very serious impacts particularly in cases involving domestic violence, compliance with mental health care, high-risk family law matters, and criminal cases generally.
The philosophy of therapeutic jurisprudence is applied across the entire spectrum of jurisprudence, and its goal is to create a court environment where individuals feel that they have been given a voice, that the voice is validated, and that together with these invisible emotional forces that are in the courtroom, law becomes humanized.
Shirin: Please explain what you mean when you say law becomes humanized.
Judge Lerner-Wren: Humanizing law means promoting and elevating dignity and respect for individuals, particularly those with disabilities, who have been largely marginalized and treated as second-class citizens in our court systems. For example, my communication in mental health court is welcoming and compassionate. And although the legal goals are to promote the protection of individual constitutional rights and due process while balancing public safety, which is paramount, I always ensure that individuals understand that the court is voluntary, and they have a choice whether to participate or not. Another unique and humanizing element of the mental health court is its staff—there is even an incourt clinician who is part of the court team.
Our goal was to create a culture in our community where we did not want to see individuals with mental health problems blindly incarcerated. We really wanted to change the way the court process was operating. We developed a collaborative process that was a swift diversionary means of having individuals transported out of an inappropriate system of care (i.e., a jail). The court instead acted like a funnel to move people from one inappropriate system to a humane system of health care.
Shirin: You recently wrote a book about the nation’s first mental health court; what did you hope to accomplish?
Judge Lerner-Wren: The mental health court just celebrated its twentieth anniversary. In twenty years, the court has diverted over 20,000 people out of our jail system with no grants and no funding (other than the clinical position we have in the courtroom). Because of this extraordinary achievement, I felt it was time to document the history of its success and sustainability. I also hoped to provide some insights into the lessons we have learned over the years. The book is called “A Court of Refuge: Stories From the Bench of America’s First Mental Health Court“.
Shirin: Please share a few of those lessons you have learned over the years.
Judge Lerner-Wren: Recovery (from mental illness) is real. Treatment works. There are so many myths and stereotypes that need to be shattered. A majority of the individuals that we’ve seen over the years are professionals. We’ve had attorneys and accountants in our mental health court. And nurses and professional athletes, and many individuals who have gone to college. The stereotype is that everyone with mental illness is homeless. That is not the case. There is so much stigma and misunderstanding and shame surrounding mental health that it is so important to understand that mental health is part of overall health to be treated no differently than any other kind of physical illness. People do recover.
Lawyers are particularly susceptible to being vulnerable to mental illness because of burnout from too much work, which can lead to depression, substance abuse, dependence, addiction, and even suicide.
It is essential that every person and sector in our community, including the legal field, appreciate that there is no shame in needing mental health care. The only way to break the silence is to speak up. Our own profession is one where, if you put that on the bar application, you may not be admitted. Our own profession needs to reevaluate what role it’s playing in terms of promoting stigma and fueling fear of seeking care within our own profession.
Shirin: What is your wish list for mental health courts across America?
Judge Lerner-Wren: The criminalization of people with mental illness is a serious human rights violation. We have an estimated 400,000 individuals in U.S. jails and prisons, many of whom are in for low-level crimes. The misuse of jails in housing people who could be treated in the community and returned back to work, back to school, and back to their lives results in denying care and the ability to live their life to these people.
The overarching message of a court of refuge is that our policymakers must prioritize mental and behavioral health in our communities and across our nation. We are experiencing a serious health epidemic across the United States. The opioid epidemic and suicide rates are at a high. We are literally a nation in despair. The only way to respond is to develop the capacity of our health care systems to provide integrated mental health care in the community.
Author’s Epilogue: During the time this author was working on this article, someone she knew who had been struggling with depression, substance abuse, and—particularly—stigma surrounding both issues, committed suicide. He was not a lawyer, but he lived in Orange County, and his loss is a tragic reminder that we must keep talking openly about mental health in an effort to normalize it, and do what we can to help our friends and colleagues who are struggling with these profoundly serious issues.
Shirin Forootan is an associate at Call & Jensen, where she represents employers in all aspects of employment litigation and counseling. She can be reached at firstname.lastname@example.org.
This article first appeared in Orange County Lawyer, June 2018 (Vol. 60 No. 6), p. 38. The views expressed herein are those of the author. They do not necessarily represent the views of Orange County Lawyer magazine, the Orange County Bar Association, the Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.