The Misdemeanour Mental-Health Court in Broward County, Florida, USA, follows a defined human-rights strategy and prioritises dignity and restorative justice goals.
Established in 1997, this lower-level criminal court was the first such county court in the country and has diverted over 20,000 people from incarceration. Its efforts have been recognised by The Hague Institute for Innovation of Law at its ‘Innovating Justice Awards’.
Judge Lerner-Wren was also appointed by President George W Bush to the New Freedom Commission on Mental Health, where she chaired the Criminal Justice Subcommittee from 2001 to 2003.
Hers is a renowned court with a uniquely human-rights framework in the US – despite that country not having ratified the UN Convention on the Rights of Persons with Disabilities.
“I don’t think we value and understand the application of human rights in the same way as other parts of the world,” Judge Lerner-Wren explains. “The work I did from the protection and advocacy vantage points, that’s human rights really. It’s all civil rights.”
When she first came to the court, Lerner-Wren had to design a system from scratch that could divert defendants away from an inappropriate system of care, including jail, and to “get the sickest of the sick to hospitals”.
“Mostly, it was the transportation factor that we had to really make work. It was very complicated,” Judge Lerner-Wren says. “The challenge was to link people to services, care, and housing. But from desperation comes innovation,” she muses.
A small group of highly concerned citizens came together and, through creative collaboration and identifying the problems that needed to be solved in a very precise way, came cultural change.
“We did it all with shared vision. That’s how hungry this community was for justice,” she explains. “When you’re in communities like ours, that are so underfunded, under-resourced, and highly fragmented, it’s tough,” she adds.
The judge describes her determination not to witness those before her spending their lives revolving in and out of jail and getting trapped.
Lerner-Wren says that she’s looking forward to speaking at the Law Society’s Annual Human Rights Lecture in June. She has warm feelings for Ireland – she met her husband here when she was a keynote speaker at the 2008 annual conference for the National Disability Authority. “Ben oversaw jail diversion for all New South Wales, and they flew him over to Ireland for a work group. Six months later, he migrated to Florida, and we have been married for 14 years!” she laughs. They live in Fort Lauderdale, 40 minutes north of Miami.
Finding the right fit
She describes graduating from law school during the recession years, and says that she always had a very strong leaning towards working for the public interest and in the civil-rights arena.
“Because of the recession, a lot of those jobs just weren’t available at the time. And I really must tell you, because it’s great to tell law students, I just couldn’t find my fit,” she explains.
While practising real-estate law, she got a call: “There’s a job that I think you would be really interested in,” the person on the line said. “He never called me before, but, you know, he called me, and it was a job that was a perfect fit for me,” she explains. The role was with the Office of Public Guardian, and the programme was for adults who had been declared incapacitated. They had no family members to act as their legal guardians, to take care of their finances, make medical decisions, or find them housing in the community.
“All of these people in this programme were indigent,” Judge Lerner-Wren explains. She was put in charge – with some support staff and three “wonderful” social workers – of getting their benefits, securing housing, and making all the decisions, even death arrangements, similar to the Irish system of wardship.
“I’m a real problem-solver. I love collaboration. I love to enhance access to care, to programmes, to services wherever I can. That’s been one of my niches.
“I took my own caseload of clients, for example, even though I wasn’t a trained social worker, but we had statutory legal limits on our ratios. We couldn’t have more than, let’s say, a 40-to-one social worker. So, I took my own caseload of people in addition to directing the office and all my responsibilities, so I could expand the service model of this pilot programme,” she explains.
The job partly came about because Judge Lerner-Wren had got involved in a campaign against the closure of a huge regional psychiatric hospital. “This state psychiatric hospital, South Florida State Hospital, which had been around since the 1950s, had been privatised. Its catchment area was literally almost the entire bottom-half of Florida – 3,200 beds that institution had,” she says.
She gave a speech to policymakers in the state legislature, describing how important it was not to close the hospital because the inpatients were going to end up homeless.
“That’s one thread of what was happening while I was serving as public guardian. You know, there was a lot of serendipity to do with the development of the court. I wasn’t a mental-health expert back then. I was a young lawyer, and I got this job as a public guardian,” she says.
Judge Lerner-Wren’s reputation was growing and members of the public started to come to her for help with family members with schizophrenia and other problems. “I was trying to figure out how to give them some hope – you cannot believe the level of distress, anxiety, and fatigue. They are out of their minds with worry that a crisis is going to occur and that their mother or daughter or son with serious mental illness is going to end up with a fatal diagnosis.”
Her job at the Mental Health Court followed a federal class institutional action that had been filed against South Florida State Hospital. “They had been negotiating for years and finally reached a settlement agreement. But they needed somebody to oversee the implementation of that agreement in the institution on behalf of the residents,” she explains.
“They wanted what they called a plaintiffs’ monitor – not a court monitor – who was objective and independent and who, therefore, serves the court. This position serves the plaintiffs, the residents of the hospital,” she adds. “I had to get trained. I really didn’t know all that much about mental illness at the time,” she says.
The US has a protection and advocacy system that is a federally funded abuse watchdog, allowing subpoenas of any institution under the law.
“I got trained and they had put together one of the most innovative expert legal teams in psychiatric rehabilitation and systems of care and consumer rights – including patient rights, legal rights, and treatment orientation,” she adds.
This training, which would be outside the scope of most law schools, enhanced her expertise on the bench, the judge believes: “I’m probably the only judge in the world who practically lived for a year-and-a-half in a psychiatric hospital.
“From an advocacy vantage point, you really need to know the law if you’re going to advocate for clients who can’t advocate for themselves. You need a very strong understanding of what their rights are under the law. Remember, all these individuals are indigent, and living in group-care environments. This is America and, if you don’t have healthcare insurance, you’re in trouble. A lot of my people were able to get on Medicaid.
“To make matters worse, Florida is at the bottom of the rung of the 50 states in terms of mental-health funding,” she notes.
When she was appointed to the bench, Judge Lerner-Wren also came up against the problem of overcrowding in the jail system: “There were several precipitating problems in our jail system,” she explains. “There was an overrepresentation of people being arrested with mental illness. There were no services.”
A year-and-a-half into her advocacy role, Judge Lerner-Wren decided to run for judicial office, having always been politically active. On the hustings, she handed out ginger cookies to potential voters, making a virtue of her unusual first name and ensuring her campaign stood out with the electorate.
The Florida model has been copied in other states, but Judge Lerner-Wren is critical of what she describes as a level of coercion in mental-health courts in California: “They are targeting homeless people based on mental illness and saying if they don’t take their medication, they’re going to lose their civil rights. You can’t coerce people into getting clean.
“There is a lot of mandatory outpatient care around the country, but the evidence base is not so good. From a human-rights vantage point, there are ways of engaging people in a really dignified way, to really build that trust factor. And we know readiness is a very personal thing.”
She describes doing a deep dive into the community and dealing with people with disabilities, the elderly, the homeless, and with healthcare abuse and neglect: “You’re working across all of these disciplines – it is fascinating,” she concludes.
Lecture from pioneering US judge
The annual Law Society Human Rights Lecture will take place online on 7 June. The Human Rights and Equality Committee, in partnership with Law Society Professional Training, will host Judge Ginger Lerner-Wren, who will speak about her experience in presiding over the first US mental-health court.
The lecture will be chaired by Council member Gary Lee, who is chair of the Human Rights and Equality Committee. Gary has extensive experience in disability and mental-health law and has chaired mental health tribunals for the past 16 years. He is also a former chair of the Disability Federation of Ireland.
Registration is now open (search for ‘Annual Human Rights Lecture 2023’ at lawsociety.ie for details). Attendance attracts one CPD point.
Mary Hallissey is a journalist at the Law Society Gazette.
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