Many people by now are pretty familiar with how the criminal court system works in California.  But many are not aware of what happens when someone who is mentally ill lands in the criminal justice system.  Many people who are mentally ill are often overlooked or turned away by the mental health system and end up in the criminal justice system as a result.  Unfortunately, this is not surprising, and is happening at increased frequency.  In response to this, Mental Health Courts were created to deal with this problem.  Mental health courts straddle the two worlds of criminal law and mental health, requiring collaboration and consideration from practitioners in both fields.  They typically involve judges, prosecutors, defense attorneys and other court personnel who have an interest in or possess the necessary particular mental health expertise.  Congress addressed the issue of mental ill individuals landing in the criminal justice system in 2000 by passing America’s Law Enforcement and Mental Health Project Act which makes federal funds available to local jurisdictions seeking to establish or expand mental health specialty courts and diversion programs.  The goal of the Mental Health Court is to promote imposed treatment as a substitute for incarceration.

Under the Americans with Disabilities Act, states and municipalities cannot discriminate against people with disabilities and must make reasonable accommodations in their programs and services.  These legal obligations apply to courts as well as to diversion and alternative sentencing programs and practices administered by law enforcement, prosecutors and pretrial services.

–The Role of Mental Health Courts

From the criminal law perspective, two rationales underlie the therapeutic court approach: first, to protect the public by addressing the mental illness that contributed to the criminal act, thereby reducing recidivism, and second, to recognize that criminal sanctions, whether intended as punishments or deterrents, are neither effective nor morally appropriate when mental illness is a significant cause of the criminal act  The goals of mental health courts are: 1) to break the cycle of worsening mental illness and criminal behavior that begins with the failure of the community mental health system and is accelerated by the inadequacy of treatment in prisons and jails; and 2) to provide effective treatment options instead of the usual criminal sanctions for offenders with mental illnesses.

–Mental Health Court Procedures

So how does one get transferred into the Mental Health Court system?  This step begins when the defense attorney declares a doubt as to mental competence of his client (PC 1368/1370.1/1372).  Then, the case is transferred to Mental Health Court, at which point a psychiatrist staffed by the Court, interviews the defendant.  If the psychiatrist believes the defendant is indeed mentally incompetent, then criminal proceedings are suspended.  The psychiatrist then diagnoses the defendant, and recommends treatment that will allow the defendant to regain competence.  This can range from treatment in the jail to treatment at Patton State Hospital.  In most cases, defendants found mentally incompetent are usually in custody.  Once competence is restored, criminal proceedings are re-instituted and the case proceeds as normal.

–How Incompetence is Measured

So how is incompetence measured?  A defendant is considered mentally incompetent, and thus unable to stand trial, if either of the following is true:

  1. S/he is unable to understand the nature of the criminal proceedings (i.e., what is going on in the trial and why), OR
  2. S/he is unable to assist his or her lawyer in a rational manner. 8

What does this mean in practice? A defendant has to have a “rational as well as factual understanding of the proceedings against him.”

–What Happens When Competency is Restored?

The criminal case proceeds as before incompetency is declared.  However, in most cases where the mental health court has been involved, it is usually recognized that mental health was a contributing factor in the crime committed, and therefore is a mitigating circumstance.  Further, mental health treatment becomes available as part of a plea or settlement in the case with the prosecutor.


It is vitally important that defense counsel is experienced with mental health cases, and how the system works.  There are vital defenses that can be made, and treatment does become an option as a part of settlement or plea with the prosecutor.  The criminal courts must take mental health into account as mandated by the Americans with Disabilities Act.  If you know anyone who is mentally ill and has fallen into the criminal justice system, call us.  We can help.

–Philip Cho

Law Offices of Jeffery Rubenstein



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