Lawyers Must Address Impact of Mental Health on Criminal Justice System

By Sherry Levin Wallach

December 23, 2022

Lawyers Must Address Impact of Mental Health on Criminal Justice System


By Sherry Levin Wallach

The COVID-19 pandemic shed a glaring light on our nation’s long history of failing to properly care for people with mental health issues. For too long, we have ignored and marginalized people with mental illness, all too readily accepting the reality that too many of such individuals cycle in and out of shelters and jails, never receiving the care they need in the community to live stable lives.

As a profession, we have only recently started to pay attention to mental health issues with which our clients, our colleagues and we ourselves struggle. We are already frustrated because of the lack of resources and support for our clients’ mental health needs, and we now have to deal with even more clients suffering from pandemic-related mental illness and trauma. The plight of our clients – and our perceived inability to help – has impacted our own well-being. Yet, attorneys must be well to provide the best and most comprehensive representation to their clients.

This issue is not only affecting lawyers and people diagnosed with a mental illness; it is also affecting our communities, friends and families. To improve our ability as lawyers to serve our clients, we must be prepared to better understand the mental health issues our clients and colleagues face. We must also be prepared to identify and implement changes that enhance the quality of representation we deliver to clients with mental illness while simultaneously being more attentive to our own mental health needs, as well as those of our colleagues. The resources available must be increased so that all communities in our state have access to the support, programs and treatment. Our clients must be treated with understanding and fairness to ensure safety for them and our communities.

I am asking you as members of the New York State Bar Association to join me in addressing and accomplishing the mission of my presidency – to “Invest in the Future of Our Profession.”

One of my first acts as president was to establish the Task Force on Mental Health and Trauma Informed Representation to evaluate all areas of the law where clients living with mental illness and trauma need representation and what lawyers need to provide the best possible representation. It will also focus on the challenges and issues that lawyers face when representing clients living with mental illness and histories of trauma, and identify and evaluate the need for additional resources and the impact this work has on attorney well-being. People living with mental illness and trauma touch almost every part of our legal system and, thus, our system must be better positioned to serve people with mental illness justly and with fairness. People must not be marginalized or underserved because they have a mental illness.

To highlight the importance of these issues and to provide a forum to explore them further, I decided to use my presidential summit at our Annual Meeting as an opportunity to discuss the mental health crisis and its intersection with the law. The purpose of this program is to shed light not only on what it means to live with mental illness and a history of trauma, but to highlight the issues faced by attorneys in practice, the legal community and our system of justice. As a legal community, we are often in the position in which the resources that are needed for our clients either are unattainable or just simply do not exist. Attorneys often see their clients living with mental illness marginalized or treated harshly. In many cases, their illnesses are ignored. As a society, we can and must do better.

Both the task force and the presidential summit also address the impact that representing people with mental illness or living with trauma has on attorney well-being. Attorneys may not fully appreciate how dealing with these challenges to support their clients affects their own lives. And while it is certainly true that we are in the business of helping others, we cannot do so effectively if we fail to take care of ourselves. Attorney well-being is directly impacted by the stress and difficulty of this work.

It is my view that it is the responsibility of the Bar to help build a better, more effective way to address the intersection of law, justice and mental health. The task force’s mission statement embodies these principles.

Before we can be successful in improving the manner in which our legal system addresses mental illness and our representation of mentally ill clients, we must remember that people living with mental illness and a history of trauma still confront the stigma attached to these ailments. Many of these individuals have long been entangled in the legal system due to a lack of appropriate care in the community. They are increasingly incarcerated and punished rather than afforded treatment, and too often jails and prisons serve as de facto psychiatric facilities. In addition, adolescents with complex needs are shuffled between an array of public agencies. To change this narrative, we as lawyers and judges must take the time to understand our laws as they apply to people who are mentally ill and figure out what options are at our disposal to support and connect them to treatment. After all, would we lock away a person with a heart condition simply because of illness?

Recent history shows how this pattern has trended in the wrong direction.

Since 2014, the number of hospital beds for those living with mental illness has decreased. Conversely, New York has seen a significant number of people housed in county jails, homeless shelters and state prisons. The state has only 3,000 in-patient beds for adults and fewer than 300 beds for pediatric patients. The gap between the need for and the availability of treatment options is only expected to widen as labor shortages force both in-patient and out-patient facilities to curtail services. Mental illness is just that, an illness. It is our responsibility as lawyers, judges and citizens to help each other and our community and government leaders to understand this fact.

Individuals living with mental illness and trauma are deserving of the same compassion and care afforded a person who suffers from a physical ailment. We don’t question or judge individuals when they have a heart attack and need surgery. They are evaluated, treated, supported and accommodated so they may recover. Unfortunately, the same cannot always be said for those who suffer from mental illness. The trend for people with untreated mental illness is too often the criminal justice system. When all else fails, we put them in jail.

In addition, there is ample evidence to suggest inequities in both the behavioral health system and the courts. There is an overrepresentation of members of communities of color in the justice system and a lack of behavioral health providers in those communities. Our correctional facility staff and officers also lack the appropriate training to work with people who are mentally ill or suffering from trauma. Yet, the overwhelming majority of people who spend time incarcerated have suffered significant trauma, and incarceration itself is traumatizing. People living in our jails and prisons are living with trauma, yet in comparison very few of the people working in our correctional facilities are trained to work with victims of trauma.

There is considerable work to be done to ensure equity and fairness in the justice system and the service delivery system for people with mental illness, trauma and disabilities. We need to have a system of care that is set up to the challenging task of serving clients with complex needs.

Our organization must lead and join with others to ensure diversity and equity across all programs designed to improve outcomes for people with mental disabilities who are involved in the justice system.

We must act now. Our task force, comprising more than two dozen leaders across New York State, will publish a report in the coming year. A choir of voices and perspectives is needed in every effort to improve the court and community responses to individuals with mental health disabilities. We need to be among the more prominent voices in that chorus urging reform.

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