Broward’s felony mental health court is under attack from Public Defender Howard Finkelstein, once one of its biggest advocates

 

achoi@MiamiHerald.com

When it was conceived a decade ago, Broward County’s felony mental health court won widespread praise — and inspired imitators around the country — because of its groundbreaking approach to the handling of mentally ill defendants.

Howard Finkelstein, Broward County’s elected public defender, was one of its biggest advocates.

Now, Finkelstein has soured on the court, saying its mission has shifted from treating mentally ill individuals with compassion to patching up their mental well-being so they can be punished for behavior that was beyond their control when it happened. Finkelstein, whose office has more clients than anyone in Broward, wrote a letter in June to Broward Chief Judge Peter Weinstein, saying his office would no longer refer clients to the court.

The public defender’s office currently has 1,560 cases in mental health court.

Since the letter, efforts to work out a solution have fizzled.

Broward Circuit Judge Mark Speiser, who, like Finkelstein, helped create the court and is one of its two presiding judges, said the aim of the program remains the same as always.

“[It] was designed to address the needs of people that have mental health issues and give them treatment instead of jail time,” he said. “But if they are found competent or found incompetent but their competency restorable, they need to be prosecuted.”

Prosecutors point out that mental illness is not the same as insanity, and that there are many mentally ill defendants in the criminal justice system and always have been. The concept behind mental health court is to steer all those cases and resources into one location.

View from the bench

On a recent Wednesday morning in Room 7810 of the Broward County Courthouse in downtown Fort Lauderdale, Circuit Judge Ari Porth, the mental health court’s other presiding judge, studied a folder of documents. The bow-tie-wearing judge beckoned a defendant forward. The defendant, his attorney and the director of a residential treatment center approached the bench. The defendant, on probation for cruelty to animals — including a sex act involving an animal — had asked to move out of the treatment facility where he has been since he was sentenced to probation.

“Tell me why it is that you want to move,” Porth said. The defendant said nothing. The director answered for him: He doesn’t like the food and has trouble with the rules, including one about not putting his feet on the table.

“I like the idea of you being more independent,” Porth said, “but I don’t think we are there yet. I need you to be better and not complain about the food and not put your feet up. You wouldn’t do that in your house, would you?”

The defendant remained silent. Porth scheduled a future hearing and moved on.

Porth has similar interactions with dozens of mentally ill defendants every week. Those brought before the court face charges ranging from grand theft to cocaine possession. Many are referred to mental hospitals or community-based treatment centers.

“We try to get them out of jail and into a program,” Porth said. “I try to improve upon their circumstances and try to find places that can be helpful.”

Some defendants are grateful for what the court tries to do. Robert Ostrower, 32, who is on probation, said he got his first mental health treatment as an adult thanks to Porth’s court. “This court got me the treatment I needed,” said Ostrower, who was present for a routine status hearing. “I believe Judge Porth is sincere in wanting to help me stay out of prison.”

But favorable outcomes have become increasingly rare, Finkelstein said.

He said the state attorney’s office, fearful of political blowback, refuses to discharge minor offenders with mental health issues who do not pose a threat to public safety. The result, he said: backlogs.

Finkelstein said the way the mental health court processes its defendants has come to mirror drug court — the wrong approach, he argues, because controlling mental illness is not the same as curbing drug abuse.

“If you approach mental health like substance abuse, you create a system where the mentally ill can only fail,” said Finkelstein, who at one time struggled with drug use himself.

Restoring Competency

When a purportedly mentally ill offender’s case is heard, he or she is typically evaluated by two or three forensic psychiatrists to determine their competency or lack of it. A finding of incompetence means the defendant is unaware of the consequences of being prosecuted and unable to give coherent testimony.

During the 12-month period ending in May, the number of Broward defendants found incompetent to proceed to trial was 748, according to the Florida Department of Children & Families. That was more than the other 19 circuit courts in Florida combined.

Concerned that increasing numbers of defendants were being judged incompetent, Speiser brought in an independent psychiatrist this year to review the conclusions of the court-appointed psychiatrists.

Speiser said he considered this a form of peer review. Finkelstein considered it inappropriate and tried to get the judge disqualified.

Some in the court system see the clash as a power struggle between Speiser and Finkelstein, known for pioneering WSVN-Fox 7 news’ “Help Me Howard” legal segments.

Could some be faking mental illness? The public defender’s office said the concern about “malingering incompetency” is valid, but that the judge’s approach harms other mentally ill offenders who need immediate treatment by delaying the process.

Moreover, experts say the malingerers may still be incompetent.

“It’s hard to say they are faking. A lot of them are more ill than they realize,” said Kay Dodrill, with the Broward Regional Health Planning Council and a supervisor for the competency-restoration program. “They are exaggerating their symptoms because for some of them, it has been presented to them [that incompetency] might be the better option.”

Jails as warehouses

Broward’s felony mental health court was born in the aftermath of scathing South Florida grand jury reports that said local jails had become warehouses for the mentally ill as funding and facilities for them were reduced.

The court’s impact was immediate. The number of incompetency evaluations ordered in the Broward court system nearly tripled in 2006, to 2,063 from 721. By 2013, that number, that number had grown to 3,109.

Many jurisdictions followed Broward’s lead. Miami-Dade County has been operating a program since 2000 that primarily diverts mentally ill defendants away from jail, but it does not have a designated courtroom like Broward’s. In 2012, out of 5,690 encounters Miami-Dade police officers had with people with mental illness, only six were arrested.

Relatively minor offenders who are mentally ill still do wind up in jail. For instance, Gerald Doering, 59, was charged in 2011 with burglary of an occupied dwelling. He has dementia in addition to other mental illness. He was not only found incompetent but also diagnosed as “nonrestorable,” and therefore could not be prosecuted.

No matter. Because he has no relatives who can take him in and no other appropriate community-based mental health treatment is available, he has been held either in jail or the state hospital since his arrest. He was transferred from the state hospital back to jail in Broward last April.

“I don’t want to see him in jail, but I’m not also going to put him out on the street,” Speiser said.

Annmarie Sapp, an assistant public defender, calls situations like Doering’s, in which defendants with a medical diagnosis are held because of a lack of facility beds, “very disturbing.”

As with many social welfare programs, Florida is hardly a leader. According to the Henry J. Kaiser Family Foundation, in 2010 the state ranked in the bottom third of jurisdictions in mental health funding, at $39.55 per resident, or a total of $74.2 million. The jurisdiction with the highest spending was Washington, D.C., which spent $360.57 per resident, or $21.7 million.

Beyond the courtroom

Florida’s shortage of treatment facilities can put the court in a bind. Some programs have significant waiting lists. Defendants who do get in face having their probation revoked if they do not comply to the letter with the program. Compliance can be challenging, since offenders often lack housing or transportation to get to treatment centers, or family members to help keep them in line.

“The program is setting the offenders up for failure in a way,” said Broward assistant public defender Faisal Alzal.

Change is coming, whether or not the public defender’s office participates in the court.

Starting in July, the competency-restoration program will have defendants come in more frequently, giving competency-restoration officers greater insight into whether their clients are taking their medications and following instructions.

The crisis intervention team at the Broward Behavioral Health Coalition, a nonprofit group that works with the service providers, is training officers in discretionary policing with the goal of sending offenders for emergency mental health treatment where appropriate instead of arresting them.

“One of our clients got put into a hospital instead of jail,” said Silvia Quintana, the coalition’s CEO, “because the police officer made the right decision not to arrest him and sent him into a hospital, which is what he needs.”

If the court did not exist, the mentally ill would be dispersed throughout the court system, in which case “there is no telling that these clients will get the same level of attention from regular judges,” said Dean Mynks, director of case management for Henderson Behavioral Health, a nonprofit healthcare provider. Each mentally ill defendant is assigned a case manager from one of three such providers, including Henderson.

“I agonized over this decision,” Finkelstein said of his break with the mental health court as it currently functions. “It feels like killing my own baby. People don’t like changes, but when the court becomes not the answer but a part of the problem, it is time to change.”

Read more Broward stories from the Miami Herald

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