Author: Lauren Curtis

About 4 out of 10 people in custody have been diagnosed with a mental illness. At some point, they ended up in court, where a judge determined whether they were competent to stand trial. While they waited for their competency hearings, they often languished in jails. In Texas alone, more than 1,500 people are waiting for a competency determination, and one out of seven of those defendants were charged only with a misdemeanor crime.

This nationwide problem – a crisis, according to mental health advocates – is decades old, but it’s getting renewed attention from state court leaders.
This month, the executive committee for the National Judicial Task Force to Examine State Courts’ Response to Mental Illness approved a new report that examines mental health competency systems nationwide.

“The crisis in the competency system is the canary in the coal mine for the crisis at the intersection of our behavioral health and criminal justice systems,” said Oregon District Court Judge Nan Waller, a task force member. “Too many mentally ill people end up in the criminal justice system for lack of other options and are then funneled through the clogged competency process.”
Mental health experts and court leaders say the courts need to follow the report’s 10 recommendations:

• Divert cases from the criminal justice system.
• Restrict which cases are referred for competency evaluations.
• Develop clinically appropriate evaluation sites.
• Find treatment sites that go beyond psychiatric hospitals.
• Revise restoration protocols.
• Impose rational timelines for the competency process.
• Address operational inefficiencies.
• Address training, recruitment and retention of staff.
• Coordinate and use data.
• Develop robust community-based treatment and support for diversion and re-entry.

“The solutions,” Judge Waller said, “require increasing community mental health supports and services, developing points of defection and diversion from the criminal justice system and streamlining the competency process.”

The report from National Center for State Courts (NCSC) is intended to be an immediate resource for state court leaders, and it will serve as a framework as the task force develops additional tools for courts and their partners and forwards future recommendations to the Conference of Chief Justices and the Conference of State Court Administrators. 

This month, the Institute for the Advancement of the American Legal System (IAALS), and the Netherlands-based HiiL (The Hague Institute for Innovation of Law) completed the first nationwide survey of its size to measure how Americans across a broad range of socio-demographic groups experience and resolve their legal problems. The US Justice Needs survey, funded by Bohemian Foundation, reached 10,000 Americans, asking them about the legal problems they experienced in the last four years, what they did to solve those problems, and ultimately whether they felt they managed to reach a fair resolution. The full report with the survey results was just released on September 1st, 2021 with two live webinars presenting the data, reporting on the outcomes, and suggesting solutions.

“The findings of this survey,” says Dr. Martin Gramatikov, Measuring Justice Director at HiiL, “indicate what our research has historically shown—that oftentimes the more developed a nation is, the more justice needs exist in the population, and the greater the challenge of access to justice for all. While it is widely understood that there is an access to justice problem in the United States, the full extent of the justice crisis has been less clear, until now. With the results of this survey, and IAALS’ focus on evidence-based reform, we can begin to truly understand the scope of the problem, and work towards the changes needed to address this justice gap.”

The results of the survey provide a clear picture regarding the landscape of legal problems in the United States. Access to justice is a broad societal problem—66% of the population experienced at least one legal issue in the past four years, with just 49% of those problems having been completely resolved. There is no income group, gender, race or ethnic group, age group, or geographic area that does not face a substantial number of legal problems. On an annual basis, that translates to 55 million Americans who experience 260 million legal problems. A considerable proportion of these problems—120 million—are not resolved or are concluded in a manner which is perceived as unfair. This study shows that access to justice challenges are significant and pervasive.

“This is a crisis that demands increased advocacy and funding for policies and services that increase access to justice across broad segments of society,” says Brittany Kauffman, Senior Director at IAALS. “Previous research has been heavily focused on those with low income, or has been limited in geographical scope. While this study confirms that those with low income are a particularly vulnerable population, it also reflects that the access to justice crisis is not limited to this group. We surveyed people across all regions of the United States, including urban and rural areas. Understanding the breadth and reach of the problem helps us create evidence-based solutions and sound the alarm that we need to take urgent action.”

The data reveals what kinds of justice problems people face in the United States and how—and to what extent—those problems vary across socio-demographic characteristics. It provides insights into the most serious problems, as well as the extent to which those problems are resolved. The report also focuses on two problem types in particular—1) work and unemployment and 2) money-related problems—both of which are particularly serious and impactful for Americans.

“Money-related, work, and unemployment problems disproportionately impact vulnerable groups in society,” says Logan Cornett, Director of Research at IAALS, “and we anticipate these problems will become even more common and impactful as a result of the COVID-19 pandemic. The data also highlights the critical issues of inequity in the United States justice system. While access to justice is a broad societal problem, the effects of the justice crisis are not equally distributed. Looking at the justice crisis through the lens of different socio-demographic groups reflects different constellations of problems, different experiences, and different outcomes.”

The report examines the rates at which people encounter legal problems, the relative seriousness of those problems, and the rates at which they were able to completely resolve their legal problems. The following groups stand out as most vulnerable: lower income, women, multiracial and Black Americans, younger and middle-aged, and those living in urban and rural environments. To read more, please visit: https://iaals.du.edu/

Part I: Understanding Homelessness and Opioid Use Disorder, Supporting Recovery, and Best Practices in Whole-Person Care

Opioid use disorder (OUD) is a complex brain disease that may be present alongside or contribute to additional mental and physical health conditions, as well as social, legal, and other challenges. Impacted individuals may be unable to access or obtain housing, health and/or behavioral health care, and recovery support services. 

This new resource, developed by the Homeless and Housing Resource Center with support from the Substance Abuse and Mental Health Services Administration (SAMHSA), outlines a whole-person care approach to supporting and assisting people experiencing homelessness and OUD in their recovery journey. Key topics include: an overview of homelessness and OUD, person-centered and trauma-informed care, reducing stigma, recovery supports, and harm reduction. 

Download the Toolkit

As courts continue to adapt in response to the pandemic, some court leaders are taking the extra step to ask their most impacted users what they think: court staff and court users. Giving voice is an evidence-based component of improving trust and confidence in the courts, not to mention a way to get insights that will improve cooperation and implementation. Unfortunately, most courts have limited mechanisms to get regular input from court users beyond the occasional paper or web-based survey that takes weeks to amass feedback and even longer to analyze the results.

With support from SJI, LaGratta Consulting, partners, and 12 pilot courts nationally have started the Court Voices Project. Pilot courts—rural and urban, limited and general jurisdiction—are collecting real-time, brief feedback from their staff and court users about pandemic responses. What percentage of court users prefer virtual hearings and why? Have court users found new communication channels like phone banks and online chat features to be more convenient and accessible? What ideas do line staff have for improving upon these practices? Pilot courts will collect feedback through November 2021, after which findings and lessons will be captured in a national toolkit and webinar series. In the meantime, court professionals are invited to join the national conversation by answering this live poll question about your court’s recent user feedback efforts, then bookmark the project webpage for ongoing updates. You can also learn more about the project at the Court Technology Conference on September 28-29, 2021; register here to attend in-person or online.

Judges who received opioid use disorder (OUD) training are more likely to view OUD as a chronic disease and a disability under the Americans with Disabilities Act, according to a recently released report.

The training also led more judges to conclude that funding should be increased for those who benefit from court-ordered OUD services.

The NCSC-directed Appalachian/Midwest Regional Judicial Opioid Initiative (RJOI) administered the training through a learning model called the Extension for Community Healthcare Outcomes, or Project ECHO.

Judge Geno Salomone of the Michigan 23^rd District Court praised the training, the first time ECHO was used by the courts. “I can speak for all of the panel members in Michigan…We loved using the ECHO model. Its brief-time limits are strictly adhered to, but informative. It allows a limited group of attendees access to a number of experts on the topic at hand, and it utilizes real cases. Equally as important, because of the strict scheduling, it avoids Zoom fatigue.”

More than 75 judges in Illinois, Indiana, Kentucky, Michigan, Ohio, Tennessee and West Virginia completed a survey before the opioid training, and 54 did so afterward.

The surveys, conducted by Wayne State University’s Center for Behavioral Health and Justice, show:

• Ninety-two percent of the judges strongly agreed, post-training, that recovery is possible after a substance abuse relapse, compared with 75 percent pre-training.
• Eighty-five percent strongly agreed that addressing OUD should be a goal of the justice system, compared with 76 percent before the training.
• Seventy-five percent strongly agreed after training that funding should be increased for OUD services, compared with 67 percent before the training.
• Sixty-six percent strongly agreed post-training that judges should rely on experts to determine how to use medicine to treat those who abuse opioids, compared with 56 percent pre-training.
• Sixty-four percent of judges strongly agreed, post-training, that OUD is a disability under the American with Disabilities Act, compared with 21 percent before training.
• Seventy percent strongly agreed that OUD is a chronic disease after training, compared with 55 percent pre-training.

In response to the COVID-19 pandemic, state courts accelerated efforts to implement online dispute resolution (ODR) programs that offer litigants a software platform in which to resolve legal problems, including negotiating settlements or exchanging information in preparation for in-court hearings.  ODR programs are intended to increase access to justice, especially for self-represented litigants, through increased convenience, case processing efficiency, and awareness of litigant options, while decreasing costs.  With SJI support, the National Center for State Courts (NCSC) has issued a new report describing a framework for program evaluation, as well as ongoing performance measures for ODR programs.  The framework employs a “balanced scorecard” approach to ensure that evaluation and performance measures take into account perspectives of important stakeholders, including courts, litigants, access-to-justice advocates, and funders of ODR programs.  All of the measures address the same underlying primary question: to what extent does the ODR program improve access to justice?  The report is available here.  The NCSC project team is also available to provide technical assistance to courts implementing new ODR programs.

Given the rapid advancement of technology solutions such as ODR, litigant portals, and artificial intelligence, SJI has committed to not only provide seed funding for these efforts, but also play a critical leadership role.  SJI is promoting the development and implementation of these technologies, and working with key stakeholders both nationally and internationally to adapt proven technology platforms in the state courts.  These developments will fundamentally change the way individuals interact with the courts, in addition to further streamlining court operations.