The Texas Prosecutor, July-August 2017, Volume 47, No. 4

Taking on mental health issues with what you have

Our felony criminal justice system consists of this office and five district courts, three of which also have jurisdiction in Randall County, which is outside of my jurisdiction. In 2007, our jurisdiction started an accountability court for probationers with technical violations. After a couple of years, we realized that a vast majority of those in the program had drug problems, so we modified it into a drug court in 2009. In 2014, we added a re-entry court for those returning from Substance Abuse Felony Punishment Facilities (SAFPFs). So we have a history with specialty courts in this jurisdiction.
    Most recently, in 2016, we implemented a year-long, felony-level, pre-trial diversion program for veterans and those with mental health issues—using no additional funding. To get it off the ground, we included people from the offices of the district attorney, probation, county jail, the local mental health community (Texas Panhandle Center), Veterans Affairs, community mental health care providers, graduate students at West Texas A&M University, and the local defense bar. It has been a huge win for all involved, and it hasn’t cost taxpayers an extra penny.

Launching the program
When District Judge Nancy Tanner ran for office a couple of years ago, one of her top priorities was to work on the huge mental-health issues in our county jail. Upon taking office January 1, 2015, she hit the ground running with this issue by gathering us stakeholders to come up with a plan for helping defendants (whether they’d committed misdemeanors or felonies) with mental illness.
    After about a year of development, a mental health docket for misdemeanors was launched. As for felonies, we considered both a veterans’ court and a mental health court. Both offered features we liked, but both would have required additional funding that was nonexistent in our county. We didn’t even have enough money for one, much less two, specialty courts. Plus, if we chose one over the other, we would be leaving out people who needed help. That was unacceptable to me and to Jason Howell, an assistant district attorney whom I hired in June 2015. Jason came to us from the Galveston County Criminal District Attorney’s Office, where the elected CDA, Jack Roady, had Jason working on that office’s mental health program. Jason and I (mostly Jason) decided to develop our own mental health program utilizing the assets available to us.
    We wanted to address the increasing number of defendants who are either veterans or who have a diagnosed mental health condition or traumatic brain injury. After investigating the traditional mental health and veterans court programs, we decided to implement a home-grown, pre-trial diversion treatment program on a small scale (to gather data and work out the kinks before launching a massive system). We reached out to various groups to be part of the program (more on that later), and not one person turned us down! From the beginning, Jason and I were very optimistic about the plan we developed. Each team member was very excited and glad to be a part of the group that would implement this program.
    We intentionally kept the number of participants low (just five people) to see how the idea would work and to keep it manageable. We also limited eligibility to those charged with nonviolent offenses. (Those offenders charged with assaults are also allowed to apply but are very heavily scrutinized. We made this exception because mental health issues are sometimes the root of violence.)

The first call
Our first step in building the program—the most important—was to contact West Texas A&M University. We have found that local colleges and universities are a severely under-utilized resource for the criminal justice system, and we needed the buy-in of those at the university or we were dead in the water.
    Students who are working on their master’s degrees in counseling must have at least 300 hours of actual counseling experience to earn their degrees, and it can be difficult for them to fulfill this requirement. We had the idea to use these graduate students as the counselors for our diversion program, which would serve the dual purpose of earning counseling hours for them and providing (free) therapy to those participants in the program. The students and their professors leapt at the chance to help.
    Our program utilizes graduate students as counselors and case managers for the participants, and a professor oversees their work. The goal is to keep this as a treatment-based plan rather than a criminal-justice-based one. By employing counselors (rather than law enforcement or probation officers) as the main point of contact, participants are more inclined to be honest with the staffing committee (more on that in a bit) when failures occur, and they get access to mental health treatment that they may not otherwise receive in the community. Participants can also visit with counselors via video calls if an in-person visit is too difficult. It is a win-win for both the grad students and the program participants. It has also saved tax dollars in allowing defendants to participate without having to pay for mental health services.

Staffing committee
The next step was deciding who should be on our staffing committee; this is the group of people making decisions about the program and its participants. They meet with the participants outside of court, make recommendations to the judge, and propose changes and improvements to the program as a whole. We wanted to include a diverse group to get as much input from all of the different parties as possible and to show participants that an entire community is behind helping them to succeed. The staffing committee in-cludes prosecutors from our office, probation officers, professors and grad students from West Texas A&M, mental health staff from the sheriff’s department and county jail, VA officials, medical professionals, and members of the Panhandle Defense Bar. Having a large and diverse committee was problematic at first because everyone has his own perspectives and experience, and it is difficult to bring everyone together for meetings, but the program has wider support with a larger staffing committee because so many groups have “skin in the game.”
    Traditional veterans’ and mental health courts typically have an administrative or overseeing judge, but we chose a different path for our jurisdiction. Because we started this treatment program as a pilot, we went to all of our district court judges and gave them a brief overview to let them know what we were doing. They have given their support, and at least one participant has come from each of the district courts. Because there is no overseeing judge, when the staffing committee makes a decision to approve a participant, impose a sanction, or to discharge someone (which luckily has not happened to date), the defense attorney and prosecutor simply hold a hearing in the originating court and present the decision to the judge for approval. Thus far, this approach has worked very well.

Where participants come from
Our program gets recommendations for participants from several sources. The VA Justice Outreach Program contacts our office when a veteran who might be a good candidate for the pre-trial diversion is incarcerated. Judges and trial prosecutors can alert the prosecutor in charge of the program (Jason Howell) that someone may be an eligible participant. Law enforcement, usually from the jail, are a source of referrals to this program as well, as is the defense bar.
    After receiving notice of a potential candidate, we give the defense attorney the application to go over with her client. (There’s a sample application below.) To enter the program, we require a signed judicial confession because candidates must be competent to participate. If there is a question concerning competency, that issue must be taken care of before the process can continue. If a defendant declines to sign the confession, he will not be allowed to participate in our program.
    The defense attorney turns in the application, any records she has obtained, and a signed HIPAA (Health Insurance Portability and Accountability Act) release. We require the HIPAA release so the staffing committee can talk with the counselors and medical professionals to come up with an individualized treatment plan for each participant and to modify it as needed. Once the application, records, and HIPAA release are received, Jason gathers any documentation that will help in screening and assessing the candidate.
    Once all the documentation is gathered, the staffing committee meets to discuss the candidate’s entry into the program. We work with the candidate’s current medical and mental health providers to write an individualized treatment plan. If there is no current treatment provider, the local mental health group and our West Texas A&M partners develop the treatment plan. After the plan is worked out and the staffing committee has given its stamp of approval, the prosecutor and defense attorney sit down with the candidate to verify that he wants to participate. The candidate must sign a contract with a judicial confession (again, there is a sample contract below).
    Once all that has happened, there is a hearing in the original court with jurisdiction over the criminal case. The judge reviews the contract and treatment plan and then grants or denies the candidate’s enrollment in the program. (There is a sample of the admonishments that the judge should give to the candidate below.) The program lasts for one year, and after the participant has successfully completed the requirements, there is a graduation and dismissal hearing in the original court.

Not the easy way out
Some might think that a treatment program is an easy way out for defendants, but that is far from the truth. This is definitely not a “get out of jail free” card. Participants still have to meet with probation at least once a month, stay in constant contact with a counselor and case manager, keep up with medication, make VA appointments, attend Alcoholics Anonymous meetings or post-traumatic stress disorder (PTSD) treatment, and whatever else might be in his treatment plan. On top of all that, many times we include family counseling in the plan to develop a support network for the participant and teach him how to deal with the rigors of everyday life. Once a month, the participant must also talk to the staffing committee to report on his progress, any problem areas, and any necessary changes to his treatment plan. All of this is on top of any work and family responsibilities the participant may have.
     We have had to address several issues to get participants on track and make the program run more smoothly. Generally, that has involved tweaking participants’ treatment plans. For example, one participant attended a drug program three times a week and began showing signs of PTSD. We modified his plan to only two drug classes per week so we could add a session of family counseling for the PTSD; addressing the PTSD will also help with his drug issues. Another participant wasn’t doing well in group therapy sessions, so we modified his plan to include only individual sessions to see if that works better for him.

Success so far
The pilot program is proving successful. Our first mental health treatment participant successfully completed the program and graduated in May, and our first veteran graduate is close to completion too—he was scheduled to graduate in June. All in all, it is a big win for our local community in tax-dollar savings, for graduate students receiving real-world counseling experience, and in reduced incarceration of veterans and those with mental health issues.
    The 47th Judicial District Attorney’s Office is in the process of expanding our program so that more defendants can access the treatment plans, get the support they need, and lighten the load on an already heavy-burdened criminal justice system. The future is very bright for our diversion program, and there is no reason why prosecutors in other jurisdictions cannot do something similar to what we’ve done. We took a vision and built a program the cowboy way: using what we had available. It took some effort, but know that there are others out there who can and will help—all you need to do is ask.
    And that includes us. If you’d like to start a community-based treatment program in your area, feel free to contact us with questions—we’ll be glad to help you. Below are a few documents we prepared for this program. Feel free to use them in any way you wish, and don’t forget to keep your white hat clean.