Editor’s Note: Mental health courts in California are designed to stem the increasing tide of offenders whose mental illness underlies their crimes, landing them, often repeatedly, in overcrowded jails and prisons ill-equipped to handle – much less help – them. (Second of two parts. Part 1 is available here.)
San Francisco attorney Jennifer Johnson views her life and legal trajectory as “life before and life after” a devastating 2016 homicide case that forever changed her view of how the courts treat defendants who are mentally ill.
The case in San Francisco Superior Court involved an 85-year-old defendant, Don Rebello, who suffered from severe dementia. Suddenly and for no apparent reason, he stabbed and killed his beloved friend and longtime roommate, Erik Kleins, 83 – two of three elderly men who had long shared a San Francisco home.
While dementia is a neurological condition, it is technically not categorized as a mental illness, although symptoms and behaviors are often strikingly similar.
Fredderic “Freddie” Crawford, a retired physical therapist who was the eldest of the three at 87, witnessed the horrifying and abrupt attack, losing his two best friends, his family really, in one terrible tragedy. Crawford and Kleins, who had managed several San Francisco movie theaters, were trying to care for Rebello, a retired law librarian, at home as his condition rapidly deteriorated. They had been looking for a care facility for Rebello when the attack occurred.
Traumatized, grieving and physically very frail, Crawford dutifully came to court as a witness, and at one point collapsed during the lengthy proceedings.
“He came for the arraignment and was there to support the partner who had killed his other partner,” Johnson recalled. “When they brought [Rebello] out, Freddie collapsed, overcome with grief.”
Johnson had long represented mentally ill defendants, though few of the cases were homicides – the one category of crime that was not allowed to be transferred to the Behavioral Health Court she helped to create and where she usually worked. Occasionally, she would be assigned to represent defendants in homicide cases in which “mental health was an issue.”
While dementia is a neurological condition, it is technically not categorized as a mental illness, although symptoms and behaviors are often strikingly similar. Dementia and mental illness rarely “fit” into neat legal categories, in which “competence” to understand court procedures is evaluated.
In such cases, defendants may be legally deemed as “restored to competency” and able to understand the proceedings – or not.
“One of the huge gaps in the criminal justice system is the aging population of people with dementia,” Johnson said. “Obviously, he (Rebello) could never be ‘restored’ [to mental competence]. He was never going to get better.”
Johnson retired last year, after two decades in the San Francisco Public Defender’s office, where she co-founded the Behavioral Health court in 2003 to help get mentally ill defendants into treatment and out of a punitive criminal justice system ill-equipped to help them. She had dealt with difficult cases before, but nothing like the Rebello case.
“I was probably too attached. It was the one case where I sort of lost my objectivity.” — Jennifer Johnson
The defendant’s severe dementia meant that he had no concept — nor memory — of what he had done, was unable to communicate and never recognized Johnson as his lawyer. But under California law, he was charged with murder and jailed, while the wheels of justice ground mostly to a halt.
“It was the most frustrating case, and it changed my life forever,” said Johnson, who now works as an attorney in the San Francisco Sheriff’s Office and as a consultant on mental-health and criminal justice issues for government agencies and nonprofits. She also co-teaches a course in Mental Health and the Law (with neuropsychiatrist Dr. George Woods) at UC-Berkeley School of Law.
She is writing a memoir about the Rebello case and her journey through a court system which struggles with how to manage – much less help –the increasing numbers of mentally ill offenders filling California prisons and jails. Using pseudonyms for the victim and defendant, she spoke at length about the case last year in a San Francisco presentation and podcast about mental health and the criminal justice system, co-sponsored by the UC-San Francisco Citywide Case Management Program, which provides intensive mental-health treatment services.
“I was probably too attached,” she said. “It was the one case where I sort of lost my objectivity. I felt strongly about Freddie, who had lost both life partners and had to endure the long delays” in adjudicating the difficult case.
The case dragged through the courts for two years, as the uncomprehending, frail and elderly Rebello was shuttled between the San Francisco jail and Napa State Hospital, where he was finally deemed legally “incompetent” to stand trial – a fraught and glacial process that can take months, often years, while the accused stays in jail.
“I’ve been fighting the criminal justice system for mentally ill people for so long, and it was a breaking point for me,” says Johnson.“What I had to drag the last living victim (Crawford) through, all the waiting, it was agonizing. I’d never had a case that had been that tragic and that heartbreaking, and highlighted how much change our system needs.”
Johnson’s hard-fought defense included evaluations of Rebello by three physicians “who all said he would never get better.” Nonetheless, a traumatic transfer to Napa State Hospital was ordered for Rebello to undergo further evaluation. At Napa, she said, “they quickly decided he could never be ‘restored’.” Ultimately, Rebello was placed in a public conservatorship, and sent to live out his days in an Oroville care facility where he died in July. Crawford died in June.
“It was a wildly expensive process that doesn’t have good outcomes,” Johnson said.
‘The law doesn’t fit the reality’
While considerable progress has been made in establishing mental health courts around the state, extricating significant numbers of mentally ill offenders from the criminal-justice system, Johnson said, “the law doesn’t fit the reality, and it has not evolved with our understanding of the brain.”
“But decades of bad public policy have left a legacy – people traumatized by incarceration, lack of mental health care.” — Jennifer Johnson
A nationally recognized legal authority on mental health law, Johnson was the resident public defender on a team of legal and behavioral health experts who helped mentally ill defendants in San Francisco’s Behavioral Health Court to get treatment and services which would keep them out of jail and prison – in some cases reducing their sentences or even dismissing the charges against them.
Like others involved in mental health courts throughout the country, Johnson says a collaborative, team approach is essential for the courts to work. “Mental health, prosecution, probation, defense – all are needed at the table to make these programs operate properly,” she said in several interviews with Capitol Weekly. “And that’s not an easy thing to do in an adversarial system.”
Many mental-health advocacy groups press for more prevention and education as the best means to keep the mentally ill out of the criminal-justice system. “I’m all for prevention,” says Johnson. “But decades of bad public policy have left a legacy – people traumatized by incarceration, lack of mental health care. We need both prevention and reversing the damage of our own bad policies.”
In a 2016 commentary in the San Francisco Chronicle, she urged policy-makers to “unravel decades of damage” by recognizing “the crucial role that the mental health system plays in ensuring public safety, and prioritize its resources accordingly,” with legislation, policies and funding that ensure treatment, not incarceration.
“For 40 years, we have swept homeless, vulnerable, poor, addicted, black and brown people into our jails and prisons,” she wrote. “Nearly half of those people have a mental illness. . . Instead of receiving treatment, they languish behind bars, waiting for a treatment bed. Or they are released to the community without any treatment plan at all and fall through the gaping holes in our social safety net.”
State legislation was approved in 2018 to create “diversion” programs in California courts for defendants with mental illness, drug addiction and other specific issues underlying their crimes. It has removed many defendants from the court system and somewhat reduced the number appearing in mental health courts, although Johnson said in San Francisco that it means “we get the more serious cases.”
And, in an odd quirk of the 2018 law, diversion programs (in which a defendant’s charges are withdrawn if they comply with the program), will not accept individuals with certain mental-health diagnoses, Johnson said. Those include Borderline Personality Disorder, a serious but common diagnosis often confused with Bipolar Disorder.
“We should be looking at their functioning in the community, not their disorder,” says Johnson, who like many criminal-justice and mental-health experts is critical of the 2018 law, which critics say was amended late in the legislative process and rushed through with limited discussion.
“Our service providers are heroes.” — Lawrence Brown.
While San Francisco’s Behavioral Health Court accepts serious cases, other local mental health courts may accept only misdemeanors. There is no statewide legislative or legal standard for mental health courts to follow in California, only guidelines and wild variations in funding. There is no state oversight and no comprehensive statewide data collection.
“If you’ve seen one mental health court,” says Johnson, “you’ve seen one mental health court. There are no statutory requirements. And, frankly, they should be different, because each county is different.”
Mental health courts expand in Sacramento
In Sacramento, Superior Court Judge Lawrence Brown is in his eighth year presiding over two mental health courts – a period when he says “our numbers have grown exponentially.” Brown also helped design a re-entry court for state prison parolees with mental-health issues, easing their adjustment to life on the outside with intensive counseling and treatment.
Since the mental health court was created in 2007, with 16 offenders in the program, it has grown to two courts currently serving nearly 300 participants, according to detailed statistics kept by the court. An estimated two-thirds are under 40 and nearly 30 percent are 19 to 28 years old. In the most recent quarter of 2020, ending Sept. 30, some 72.5 percent were “successful graduates,” while 27.5 percent were discharged for “non-compliance” with the intensive programs overseen by the court, including counseling, medication and regular court sessions.
“Our service providers are heroes,” Brown said in an interview with Capitol Weekly. “Everyone is talking the same language. Probation, the lawyers (prosecutors and defense attorneys), and treatment providers all have a shared objective of treatment. There is an understanding that we have these tools to deploy to keep a person in the community, and treated.
“It takes a village, and it’s not foolproof. . .But it is some of the most gratifying work I’ve ever done.”
Placement of a defendant in mental health court requires a commitment from participants to follow their judicial and treatment plan.
“Each of the participants knows that the court cares, and that they are going to be held accountable,” says Brown. “That’s why we bring them back in front of the court on a regular basis for updates, to see their accomplishments – and to sanction if we have to.”
“I discovered how cathartic it was for me to take over the court and to know that my lived experience was some benefit to participants.” — Lawrence Brown
“We may have to put them back in jail to stabilize,” he adds. “It’s not punishment, it’s with an eye to stabilizing.” He emphasizes the importance of a stable medication regimen — and often shares with participants and family members how medication has helped his schizophrenic sister.
Brown cites “serendipity” for his decision to take on the mental health courts, which was originally a routine rotation, but one he ultimately asked to be permanent – an unlikely choice for a former state and federal prosecutor who was the director of the California District Attorneys Association before he was appointed to the bench by then-Gov. Arnold Schwarzenegger.
“Quite frankly, I had some trepidation” about the original assignment, he said. “I would love to claim I sought it out because my sister has a mental illness, but I had never really come to terms with losing my sister to serious mental illness and was quite content to leave the burden to my mother.”
Presiding over mental health court changed his perception of his now 60-year-old sister’s schizophrenia. He frequently mentions her struggles during discussions in his courtroom – and the impact of her illness on his family, particularly his mother. He is regularly involved in his sister’s care, frequently taking their 90-year-old mother to visit her in a Santa Rosa care facility.
“I discovered how cathartic it was for me to take over the court,” he says, “and to know that my lived experience was some benefit to participants. I would share with parents in my courtroom that we were in the same situation. I had never talked about my sister, and there I was, opening up on the bench. I’m much closer to my sister now and very involved in her life.
“I now get it.”
Like other mental health courts in California and around the country, the atmosphere in Brown’s courtroom is a far cry from the often rigid, ritualized routine of traditional courtrooms, as the judge banters with attorneys and defendants, remembering key personal details about each defendant, offering encouragement, praising their accomplishments.
Multiple agencies are involved in the mental health courts in California, and funding comes from a variety of criminal-justice and mental-health sources…
He holds regular graduations for those who successfully complete the court’s requirements, and even provides gift cards to defendants who stick with their prescribed medication regimens. It’s unconventional, and widely proven to save public funds by successfully keeping mentally ill offenders out of jails, prisons and hospitals, and off the streets.
“You see these miracles appearing before you, of people who were disconnected, not taking their medications,” Brown says, “and then they appear before you as totally different people. We celebrate that, and they know it, and feel it.”
In a profile of Brown last year in the legal newspaper, the Daily Journal, he was praised equally by prosecutors and defense attorneys, and in 2018 received the Judge of the Year award from the Indigent Defense Panel in Sacramento.
“He has such a deft way of helping the most vulnerable in our community,” Sacramento defense attorney Kelly Babineau told the Journal. “The whole defense bar felt he really deserved recognition for that.”
Funding a constant source of angst
Multiple agencies are involved in the mental health courts in California, and funding comes from a variety of criminal-justice and mental-health sources, including the state Mental Health Services Act (MHSA), the 1 percent “millionaire’s tax” on all incomes over $1 million that was passed by voters as Proposition 63 in 2004.
Funding is a constant source of angst for the courts, and relying solely on state court funding is unpredictable at best. The courts can tap into mental-health funding from other sources, such as the MHSA, and the various support services also have other funding sources, including Medi-Cal and Medicare. The alternative courts clearly save money, and judicial administrators are keenly aware of that. But without comprehensive statewide data collection on successes and cost savings – and more community treatment facilities — expansion of the courts statewide is difficult.
It became clear that “the mental health problem [in the criminal justice system] was more complex and deeper than we realized.” — Lloyd Connelly
Sacramento Superior Court Judge Lloyd Connelly, a former state legislator, Sacramento City Councilman and legal services lawyer, has long experience with the impact of mental illness on the criminal justice system. Technically retired, he continues to serve as the Sacramento court’s Chief Executive Officer, and mental health issues are high on his agenda.
“From my perspective,there is no question that it saves money,” he said in an interview with Capitol Weekly. “But funding is a part of it, and the truth is that there are not now or ever will be in the foreseeable future adequate [treatment] facilities. Over the last couple of years, there are more options for outpatient facilities, and that’s a big tool for Judge Brown. But it’s not enough. We have a spectrum of [facilities], but we need more. And that’s always a struggle.”
Connelly is a longtime supporter of collaborative courts – such as mental health, drugs, veterans and parolees. “All of those demonstrate better success rates [than traditional courts], just by the nature of providing services, a judge assuming stewardship,” he said.
Over the years, he added, it became clear that “the mental health problem [in the criminal justice system] was more complex and deeper than we realized.”
Public attitudes toward mental health and the stigma attached to mental illness are often barriers to successful programs and adequate funding.
“There is a sense that, oh, if you just reach across and give them a shove,” Connelly says. “There is no comprehension that there is a fundamental chemical change that has occurred in the brain, that this is a diagnosable, measurable condition. This is not some person with an attitude, this person is really sick.”
Connelly has served as a mental-health court judge and presided over hearings in psychiatric facilities on involuntary civil commitments. Before he became a judge, he represented disabled and mentally ill clients as a legal aid attorney. As a former legislator, he is deeply familiar with the checkered legislative history of mental health law in California.
“Now here we are, years later in my life, and I can walk down the streets and see people that are exactly like the folks I saw in those illustrations from many years ago.” — Lloyd Connelly
He recalls as a student in high school and college reading about the barbaric treatment of the mentally ill, locked in asylums or left to wander and often die in the streets. “I remember these drawings about the treatment of mentally ill folks in the 18th century — horrific drawings of starving people, obviously physically and mentally ill.”
Although asylum warehousing of the mentally ill and developmentally disabled continued well into the 20th century in the U.S., closures of the state mental hospitals essentially dumped thousands of mentally ill Californians into communities completely unprepared to house or treat them. Many ended up in jails and prisons, and on the streets.
“Now here we are, years later in my life,” Connelly muses, “and I can walk down the streets and see people that are exactly like the folks I saw in those illustrations from many years ago, here outside my own office. We’re no different. The society is more complex, but we have not joined this issue like we should.”
The reluctant bureaucracy
Nevada County Superior Court Judge Tom Anderson, a former public defender in Nevada and Lassen counties, has seen the cost – both human and financial – of mental illness in the criminal and civil justice systems from multiple perspectives.
When he was a public defender, he defended clients whose severe mental illness, frequently combined with addiction issues, was at the root of their crimes, starting in their teens or early 20s, when mental illness is often first diagnosed.
“No business would continue to exist if it had an 80 percent failure rate.” — Tom Anderson
He pioneered Assisted Outpatient Treatment (AOT, “Laura’s Law” in California) in Nevada County as a public defender, after representing Scott Thorpe, who pleaded not guilty by reason of insanity to killing 19-year-old Laura Wilcox and two others in 2001, and who will likely spend his life in Napa State Hospital.
If Laura’s Law had been in effect in the period before Laura’s murder — when Thorpe was unraveling and his family repeatedly tried to warn local mental health authorities, who ignored them – he likely would have qualified for the intensive treatment the law requires, one of the few legal avenues available to family members trying to get mentally ill relatives into treatment.
Anderson helped to create AOT programs in Nevada County and throughout the state and presided over the civil court that administers them. He was instrumental in getting the county to start specialized alternative criminal courts for the mentally ill, and those addicted to drugs and alcohol, to get them into treatment and keep them out of jail.
After decades of pushing an often reluctant bureaucracy to adopt programs widely proven to save money by diverting – and treating – offenders who would otherwise be clogging expensive hospital E.R.’s, jails and prisons, or homeless in the streets, Anderson remains mystified by the glacial nature of the process.
“It’s always surprising to me how slowly it goes,” he told Capitol Weekly, “when there is all this information on [the successes of] mental health court, drug court, AOT: fewer days in jail, the ER, fewer people sitting on the streets, and what it means to families.
“All of those things save money.They’re also solutions to our incarceration system, and [its] presumed focus on punishment, its astronomical recidivism rates for decades.
“No business would continue to exist if it had an 80 percent failure rate.”
Like other judges presiding over mental health courts who were interviewed for this article, Anderson decries the lack of community treatment facilities, and the entrenched failure early-on to address the causes of severe mental illness in children and teens. “There just aren’t enough services in the communities to deal with serious mental illness,” he said.
Few California counties have juvenile mental health courts, which would provide a more coordinated response to help young people…
Anderson has recently been presiding over a Nevada County branch court in Truckee two days each week, and was troubled by a difficult case before him, a teenager with nowhere to go.
“It’s dangerous for him to go back to either parent,” Anderson said, and placements are limited for a troubled boy whose life has been blighted by family chaos, drug use and physical abuse, with all of the mental-health consequences that entails.
At 16, he ended up in court for “juvenile stuff, fighting, not serious,” Anderson said, and may be involved in a gang. Not an easy foster care placement, for all the obvious reasons.
From years of experience with difficult cases, Anderson knows the boy is at the point where the right intervention, support, counseling, treatment, can help prevent a further downward spiral. But the lack of community treatment facilities means the boy will likely be sent to a juvenile facility, where he’ll be housed with more serious offenders – or he might be returned to his father.
“That is what is pending as one of the likely alternatives,” Anderson said. “Neither is a good outcome, but it is a typical scenario.”
Few California counties have juvenile mental health courts, which would provide a more coordinated response to help young people who become ensnared in the criminal justice system, where it is estimated that about three-fourths of kids in the system have mental-health issues.
“It starts with juveniles and foster care,” says Anderson, “with not enough mental health care and early identification. Many come from families with significant mental-health issues, who are resistant to treatment, which perpetuates until it gets serious.”
Editor’s Note: Sigrid Bathen is a Sacramento journalist and former Sacramento Bee reporter who taught journalism at Sacramento State for 32 years. She has long covered mental-health issues, for several publications, and her writing has won numerous awards. She has covered health care, education and state government for Capitol Weekly since 2005. Her web site is www.sigridbathen.com. She can be reached at email@example.com.