Brian Shannon is a Horn Professor and author of a recent article published by the Texas Tech Law Review regarding mental health and legislative legal reform.
* File photos included in this story were taken prior to COVID-19.
Some of the most recent incidences of police shootings in the U.S. have called for a renewed focus on how best to deal with interactions between law enforcement and citizens who may be experiencing a mental health crisis. These encounters can frequently put both the affected person and law enforcement officers in harm's way and have all too frequently resulted in the use of force – sometimes deadly – as the response.
That has led to an outcry from many communities for police departments to examine their policies on dealing with situations that involve people who may have mental disabilities, calling for trained mental health professionals to be dispatched instead of armed police, alternatively to provide greater crisis intervention training to law enforcement or to utilize trained crisis response teams that include both law enforcement and mental health professionals.
But the crossroad of mental illness and the legal system goes far beyond incidences that require police or mental health professionals to be summoned to a scene. Once someone with a mental disability or mental illness is in the legal system, there are myriad issues that happen frequently within a complicated legal framework.
One of the leading advocates for reforming and improving the judicial system when it comes to those with mental illness or a mental disability is Texas Tech University scholar Brian Shannon, the Paul Horn Distinguished Professor in the School of Law and an expert on the judicial system and how it deals with mental illness.
Shannon serves on the Texas Judicial Commission on Mental Health, chairs a legislative subgroup, and is a member of a Model Law Drafting Group attempting to develop new national standards for court-ordered mental health services.
In early 2020, Shannon's sixth edition of the Texas Criminal Procedure & the Offender with Mental Illness book was published, and most recently his article, "Texas Mental Health Legislative Reform: Significant Achievements with More to Come" was published for the Texas Tech Law Review in preparation for the third Texas Tech Mental Health Law Symposium set for Nov. 20.
"Criminal justice issues involving persons with mental illness occur far too frequently, and the legal framework is quite complicated," Shannon said. "I wanted to develop programming to provide practical guidance for judges, prosecutors and defense attorneys to assist them in navigating these complex laws."
The past two symposiums, held in 2016 and 2018, were well received and heavily attended, and several papers from the conferences have been published by the Texas Tech Law Review. Due to the COVID-19 pandemic, this year's symposium will be held completely online.
The 2020 symposium, like the ones before it, will address practical legal and policy issues that can contribute to improvements in the public mental health system and help address the significant challenges faced by the criminal justice system and law enforcement with regard to alleged offenders with mental illness. It is specifically designed to benefit practicing lawyers and judges. The symposiums have been held in even-numbered years, Shannon said, with the lead up to the upcoming Texas legislative session.
"The main focus of the symposia has been to provide education for attorneys, law enforcement and the judiciary regarding this challenging and complicated area of the law," Shannon said. "It is our hope that the policy discussions might also influence, or at least inform, those who work at the legislative level and as part of the judicial process."
Among the featured speakers for this year's symposium are John Petrila, the senior executive vice president of policy for the Meadows Mental Health Policy Institute, who will address the lessons learned from community assessments conducted around the state, including the Lubbock area. Judge Milton Mack, a state court administrator emeritus from Michigan, will discuss the successful legal reforms that have been adopted in his state.
Sabah Muhammad, a legislative and policy counsel for the Treatment Advocacy Center in Arlington, Virginia, will present a discussion entitled, "Untenable Space: How the Law Hinders Liberty for Individuals and Families of Color Living with Severe Mental Illness." Other symposium speakers include Tarrant County judges Brent Carr and Nelda Cacciotti, Beth Lawson, the CEO of StarCare Specialty Health System in Lubbock; and Lee Johnson, the deputy director of the Texas Council of Community Centers.
"On the one hand, it will be disappointing not to have the same energy that can be achieved when the speakers and a packed house are present in our Lanier Auditorium," Shannon said. "On the other hand, we have been able to attract more than 800 registrants to date, which is far larger than what we could accommodate in person at the Law School."
Improving mental health law
In putting the program together for this year's symposium, Shannon wanted to highlight the recent legislative advancements to mental health in Texas and address the Texas Judicial Commission on Mental Health's recommendations for future legislation in 2021. Much of this has been covered as part of the 2019 re-write of the guide-book for the sixth edition for the Texas Criminal Procedure and the Offender with Mental Illness.
The article prepared for the Texas Tech Law Review is a more detailed version that he will present during the symposium.
Shannon said Texas in the last few years adopted significant mechanisms that allow individuals with serious mental illness, who are charged with non-violent crimes, to be diverted to alternative treatment programs. He also said Texas has taken steps to better train law enforcement to more quickly identify persons arrested who might have mental illness, while clarifying civil commitment standards and urging the use and development of more outpatient treatment options.
He said the establishment of the Texas Judicial Commission on Mental Health was a significant step in addressing the issues involving persons with mental disabilities who appear in state courts.
"The commission's charge is broad, but includes directives to 'identify and assess current and future needs for the courts to be more effective in achieving positive outcomes for Texans with mental illness' and to 'promote appropriate judicial training regarding mental health needs, systems and services,'" Shannon said.
Among the more significant legislative measures undertaken since 2017 in terms of mental health in the legal system were the adoption of Senate Bill (SB) 1326 and SB 1849.
SB 1326 enhanced requirements for the quick identification and screening of incarcerated persons suspected of having a mental illness or intellectual or developmental disabilities. Shannon said this can facilitate a possible diversion to alternatives to the criminal justice system or enhance the opportunity for appropriate treatment in jail when diversion is not an option.
SB 1849, also known as the Sandra Bland Act, requires law enforcement to engage, in good faith, to divert alleged offenders with mental illness to civil treatment alternatives. The bill also set the framework for new matching grant programs to enhance services and required the Texas Jail Standards Commission to develop rules to require jails to provide 24/7 access to mental health professionals either at the jail or via telehealth services.
"These amendments also revised the criminal competency process to create a greater emphasis on alternatives to inpatient competency restoration services," Shannon said.
More recently, in 2019, the Texas Legislature adopted Senate Bills 362 and 562 and House Bill (HB) 601 that created several mental health reforms. SB 362 clarified the legal standards and streamlined some procedural requirements for outpatient civil commitments while creating a path for diverting persons with mental illness charged with nonviolent crimes into the civil commitment process for treatment.
Shannon said HB 601 and SB 562 helped clarify some of the previous reforms from 2017, but that SB 562 created a greater emphasis on these measures.
"Diversion courts, such as mental health courts, have had demonstrated success in reducing recidivism and increasing the participants' utilization of mental health services," Shannon said.
The Texas Judicial Commission on Mental Health is a primary advocate for reforming mental health laws and procedures within the judicial system. It was established in 2018 by the Texas Supreme Court and the Texas Court of Criminal Appeals "to engage and empower court systems through collaboration, education and leadership, thereby improving the lives of individuals with mental health needs, intellectual and developmental disabilities and substance use disorders."
"We developed a strategic plan in 2019 to focus on certain key goals," Shannon said, "including collaboration with stakeholders to improve court functioning for people with mental health needs, the development of resources on key concepts and court practices related to mental health, and serving as a resource to develop policy and legislative recommendations."
Even with all the measures the state has taken to address mental illness in the legal system, Shannon said there is still much more to be done to ensure the state is doing all it can to provide treatment alternatives for those with mental illness who are incarcerated.
"The Texas Legislature has been forward-thinking in establishing the legal framework to permit more alternatives to inpatient hospitalization, particularly for competency restoration services in the criminal justice system," Shannon said. "These include statutory authority for both outpatient competency restoration and jail-based competency restoration, with appropriate standards and safeguards. However, there remain only a limited number of such programs across Texas. The Legislature created and funded a matching grant program for such efforts during the 2017 legislative session, but it is just a start."
The next step, Shannon said, is taking Texas' progress in treating mental illness in the legal system and applying it on a national basis. He said most legal standards relating to civil judicial intervention were developed 50-60 years ago, and much progress has been made by medical professionals in the study of mental illnesses.
Getting national policies and procedures updated or changed is the goal of a Model Legal Processes Workgroup, formed in conjunction with the National Center for State Courts and Mental Health Colorado, whose membership includes prominent psychiatrists, judges and law professors. Mack, a member of the group, as well as speakers from two previous symposiums, are members of the group, and Miami Judge Steve Leifman, a keynote speaker at both of the previous symposiums, asked Shannon in 2018 to serve with the group as well. He said their project for the group should be completed sometime in 2021.
"We have a large state with a growing population, and additional funding for more programs is needed," Shannon said. "Given the impact of the pandemic on state revenues, however, funding for new programs will be challenging in the upcoming legislative session. Even recognizing that challenge, however, on a longer-term basis, our legislature and the state's two highest courts have unquestionably made this area a high priority."