This post is part of the Mental Health Monday series, in which iustitia examines one aspect of the intersections between mental health and the law. You can find previous posts here.
If you meet Kelly Pretzer in a social setting, you’d never know that the easy-going California native is a sharp and tireless advocate for indigent clients and does not hesitate in condemning systemic injustice in the Memphis criminal justice system, where she started working in September 2014. Less than a full year into her position as an assistant public defender, Pretzer was catapulted to lead the team in the public defender’s office that would work within the brand new mental health specialty court—with almost no training on the new court.
iustitia’s Mental Health Courts Initiative strives to better understand the role of these specialty courts and the effects on the individuals in the system. Because of her experience in a new mental health court in Memphis and her penchant for honest assessment, I asked Pretzer to discuss her experience with the system so far, her frustrations with it, and why she thinks this is an important—albeit very rudimentary—step forward for criminal justice.
The structure and work of mental health courts varies widely from district to district and state to state. Pretzer’s knowledge and experience involves the court in Memphis, Tennessee.
The following is a transcript of our conversation, lightly edited for clarity.
i: Tell me a little bit about your position in the public defender’s office and what you do.
KP: I’m a line public defender in misdemeanor and pre-indictment felony court. I also get misdemeanor domestic violence cases and every once in a while I will get a felony. We’re also on rotation to take e-felonies, which are the lowest felonies. So that’s what I spend most of my time on. We also do what’s called environmental court cases. So I’m working on a gang injunction case right now, that’s one of the sexier things that I’m doing. And I am the division leader for the mental health court. We have a regular docket four-and-a-half days a week and then every Tuesday afternoon we have a mental health court docket that’s specifically for people who have applied and been approved to enter the mental health court. So that takes up a lot of my time just because I supervise the other attorneys that are in there and then do a bunch of side projects to track client progress.
i: You only have half a day on the mental health court docket? Why is that?
KP: Well, we have two other specialty courts. We have a Veterans Court and a Drug Court. They’ve been around a lot longer, so they have a lot more clients. Since we just started this year, we had limited funding from the county and state to start a pilot mental health court program. We are capped at 30 people for the first year.
i: You mean only 30 clients can move through the system this year?
KP: Yes, for 2016. It’s July and we have met that cap already, so we’re actually no longer accepting people for an indefinite period of time. That’s a decision of the county and the mental health court director. We have already been asking, “when are we going to let in more people, guys? There are more than 30 people in jail who have a serious, persistent mental illness.” But we were told from the beginning that this was going to be a pilot and this is where we would get cut off at least for the time being.
i: What does it mean to be a pilot? Is it experimental and it could be dismantled or is the idea to build up?
KP: Yeah, I know that the goal is for it to build up. The Veterans Court and Drug Court have hundreds of cases at a time, but they have a lot more support staff and case managers. Right now we’re running on basically one case manager and an assistant case manager and some representatives from the community. The public defenders handle the legal side and the case manager handles the community linkage plans.
i: Tell me about your experience, walk us through one client’s case or how a case gets into the Mental Health Court. What resources are available and what happens after someone is released.
KP: The mental health court is meant to be geared towards people who are “frequent flyers” or people who are in and out of the system all the time, largely because they are not able to get services for their mental illness and the only thing that people know to do in Memphis is to take them to jail.
I’ll tell you about the first client I had in mental health court. She was on probation for maybe an aggravated burglary and then picked up a new aggravated burglary. But when her felony attorney came to me, there seemed to be something strange. Maybe a misunderstanding, it wasn’t like she entered the house with a gun and said “give me all your stuff.” There seemed to be a disagreement, maybe over a cable box or something. So, that set off a red flag. Individuals get a lot of jail time for these things that really seem to be more related to mental illness than anything else.
The mental health court is a misdemeanor court. So in order for us to hear it, it has to be reduced to a misdemeanor before she can plead guilty and enter the court. On a side note, we are a plea first model. The client actually has to plead guilty ahead of time before the client enters the mental health court system and we work out a deal ahead of time for how much time the client would have to serve if s/he does not complete the mental health court plan. All of that is worked out at the beginning. It seems like the judge is going to have some discretion as to whether that full term is going to have to be served if and when someone does not complete—and they can not complete by either being kicked out or deciding they no longer want to participate in the mental health court.
We so far haven’t had anyone drop out or be kicked out, which is good, I think.
i: How would someone drop out or be kicked out?
KP: So you can opt out of doing it at any time. However, the guilty plea stands and you are subject to doing whatever time was agreed to from the beginning. So if it was a felony reduced, you probably have a pretty substantial amount of misdemeanor time to do. Aggravated burglary is a pretty serious charge. Reducing it to a theft, which is what happened with that client, means that she could serve only 11 months and 29 days total on the misdemeanor.
i: Let’s step back for a second, can you explain how someone is eligible for mental health court in the first place. Is a diagnosis required? How is someone diagnosed?
KP: Our office does have a team of people that monitors clients who have been sent for mental evaluations in the past. We get an email with all of that information for anyone on the docket that day. That goes for all of our cases. It prepares you to see their diagnoses. Usually we are tracking the diagnoses for all of the clients we have, even if they’ve been rejected for mental health court.
The pre-trial services office also gets referrals for people who do intake at the jail [where individuals are held prior to trial]. I imagine that questions about their mental health history will come up as they are being processed in the jail.
Finally, as part of the mental health court process, they sign a medical release and we can get all of their information about whether they’ve received services in the community. There is an emergency mental health clinic where people can go if they’re having suicidal ideation, regardless of insurance. That’s certainly one place we ask about and we ask about whether they’ve seen doctors or mental health professionals in jail.
A lot of it is, honestly, in that initial interview with the client, whether we suspect that they have a mental illness for one reason or another. When we do our initial interview, we treat it as something we ask everyone as our regular line of questioning.
But to answer your question, there has to be a diagnosis from a psychiatrist in the past to be eligible for mental health court in the first place. Because we usually deal with so many “frequent flyers”—I hate that term—but people that have been in jail before, usually they will have had a diagnosis in jail in the past.
i: It’s not as stigmatizing that way. So once you have a diagnosis, how do they actually get into the court?
KP: I’ll illustrate that by continuing my first client’s story. So her felony attorney came to us and said, “I have this client, I know she has a diagnosis and has received [mental health] services before, is she eligible for mental health court?” Because the prosecutor, again unfortunately, is the gatekeeper--
i: Wait, come again? The prosecutor decides whether someone is eligible to go through the mental health court?
KP: Yes. Well, sort of. I’ll get to the full process in a moment, but that’s another thing that the National Association of Criminal Defense Lawyers says is not great, in addition to having to plead first. But that’s what we have. I wasn’t involved at all in any of the discussions about how this was going to look, so I didn’t get a chance to raise hell about that.
We go to the prosecutor and ask the prosecutor if this person is eligible. Typically what the prosecutor is looking for is whether they have some kind of violent felony. I would say their consideration is largely political. Basically what we have heard their reasoning is, “we don’t want to let someone into mental health court and then they turn around and kill someone.” Then they would be on the news because they gave this person a break and that person was out of custody and they would be blamed. Having violent convictions is the biggest bar for someone getting into our mental health court.
i: Are there guidelines—statutory or otherwise—that the prosecutor has to abide by in making this decision? Or is it arbitrary?
KP: It’s pretty arbitrary. There are no guidelines for the prosecutor. I think it shows because the prosecutor was much harsher in the beginning about violent convictions than he is now. Certainly from our perspective we always said, “look, if people are mentally ill and not on medication, they may act out violently and it’s even more of a sign that they need mental health care.” That was frustrating, but, I think, as with everyone in the room, he’s gotten better about it. It seems like the only guideline is “don’t let this get in the news.” Honestly, that’s a little unfair to him, because it’s not his fault if someone gets accused of another crime.
This also allows for a point of advocacy for us to dig into someone’s record and understand what the violent crime is and explain away whatever it is that you think you’re going to get resistance on.
i: So once the gatekeeper approves, then what?
KP: The prosecutor then approves or rejects. If they approve it, the case manager and the mental health court director then sit down with the client and we can either be there or not, and they explain all of the rules of mental health court to them. The client then sets another date at the court and they can decide whether or not they want to participate.
We then take it to the “staffing,” as it’s called. That’s a meeting that consists of all of the public defenders, the judge, the case manager, and the mental health court director. We all vote on whether or not the person can come into the mental health court.
i: What goes into the client’s decision whether or not to participate?
KP: We want to make sure they understand what they are getting into, make sure they understand what their sentence would be if they don’t complete [the program]. These are the two biggest things that people need to know. It’s hard because when you’re in jail; all you want to do is get out. You want to do anything you can to get out. But what we try to clarify to people is that this is going to be four days a week of appointments, places to go, and it’s going to be time-consuming. So we try and hit that early on and explain that this is not a get out of jail free card. We make clear that if you plea in and then you don’t do it, you will be subject to a lot of time in jail. That has swayed a few people away from participating.
i: Do your clients find difficulty going through the mental health court's program while still maintaining jobs and supporting themselves?
KP: Absolutely, especially starting off. The way it usually works, if the person was already in jail, they will be released on their own recognizance to do services in the community. Typically, on Monday, Wednesday, and Friday they go to outpatient counseling. Tuesday is mental health court day. They have to be there to drug test by 11am and then they have to sit around and wait until court starts around 2:30pm. That’s four days a week that they have to be somewhere. Most of our clients don’t have transportation. Most ride the bus, which is really horrible in Memphis. They do get bus passes from the court, however.
To give you an example, the client that I was discussing earlier works as a domestic worker for a lady on the outskirts of town. She brought that up early on that she was making money and felt more stable than she’s ever felt before, is now able to actually keep a job, and that she doesn’t have time to go to appointments four days a week during her work hour. The mental health court judge, director, and case manager were a little hesitant at first.
i: And are the judge, the mental health court director, and the case manager the decision makers?
KP: They are the ones that we are advocating to on behalf of our clients. In this case, eventually they were understanding and were willing to find her some off-hours times to attend counseling. She was still fulfilling all of the rules [of the court] while still being able to maintain her job.
i: What resources are available to you in terms of being able to follow up with the clients and keep them on track?
KP: We have weekly staffing. That’s [a meeting] for an hour or an hour and a half, before we run the docket when the clients come in. The day before that, the case manager sends us all of our status updates for the week. I may not hear from my clients for a whole week, especially if they’re doing well, so the case manager sends updates on their appointments and status. We read those and prepare ourselves. Usually you can figure out from that what [the judge and director] are going to question and whether they’re going to ask for a warrant to be issued if the person does not show up. A lot of it is on your feet. You have to be prepared if they tested positive for drugs or if they missed another appointment, so others may advocate for teaching them a lesson. But, I think we’ve all be in agreement since day one that jail is not an effective punishment for people with mental illness. And that has been pretty consistent and we are happy that the judge, and even the prosecutor, to my pleasant surprise, were quickly able to understand that jail doesn’t work for people with mental illness. Maybe someday he’ll think that jail is not good for anyone. I’ll take it for now. He also hasn’t really been advocating for using jail as a punishment. So that’s a positive sign. We’ve been fighting pretty hard, however.
i: Are there obstacles that you face with court staff?
KP: The case managers, who are social workers, have no experience in the legal system. So it’s hard to reconcile their experience with where we are coming from as advocates. The idea of zealous advocacy is a first for them. We get into a lot of heated conversations and confusion about why we’re advocating for something, particularly if they believe that someone needs to remain in inpatient rehabilitation or if they fear the client could hurt themselves or others. It is difficult to get across why we advocate the way that we do. We’re very client-centered and are lucky enough to have a group of young motivated people who aren’t afraid to step up and advocate for what their clients wants.
i: Are there strategies that your team has to better prepare guide the non-legal staff?
KP: Well, for example when a client hasn’t returned calls in a few days, a case manager may be quick to want to punish them. So, we’re able to remind them, remember the last time she (the client) didn’t get in touch was because her daughter broke into her house and stole her phone. She doesn’t have money like we have money to go get a new phone. So, basically it’s just giving people who aren’t public defenders some context of where clients are coming from. They understand the mental health side better than most of us do because they’re practitioners and have had more intimate experience working with people with mental illness. But where that meets the legal system that changes the dynamics.
i: Moving away from the procedural issues, is there also room for you as a public defender’s office for more systemic advocacy on what you’d like to see in terms of resources and changes in the court system?
KP: Not really so far. I’m not sure what the space would be to do that and we’re certainly not doing it right now. On the one hand, the fact that this mental health court exists and that lawyers have been able to refer people to it, I think it has raised consciousness across the courthouse that there’s something more for the people that we’re used to seeing in court every Monday. I think, if nothing else, it has raised the consciousness that jail is not good for these people. Honestly, when I started, one of the things we’d advocate for when we had a client with mental illness, was to ask the prosecutor to just dismiss it—a product both of low resources for mental health and because of the minor nature of the crimes. That was not a good way to deal with the problem. I don’t think people saw an alternative to that.
I am feeling a bit at a loss now that we’re not taking more people about what to do for the time being. The case managers have been pretty great and are willing to put together community linkage plans for people, but just don’t have the resources to supervise them. They are so busy. We definitely need another case manager before we can take on any more clients. I’m surprised the case manager can do it on her own.
Another positive thing is that in the community and even mental institutions and hospitals know about mental health court now. So they will flag to us and ask us whether certain clients can get into mental health court. It’s known as an option now instead of involuntary commitment, which we would generally try to find an alternative to for our clients.
We hope that once the word about success stories gets out, we’ll be able to expand. Because generally I think the resources are available in Memphis.
i: What kind of community-based resources would you like to see or are there other examples of mental health courts that have better resources?
KP: I don’t really know what the gold standard is. I’ve only run by them anecdotally and haven’t gotten to look into it. I am a public defender after all and four-and-a-half days a week I just have my regular docket. The thing I would like to see the most is more resources for people who have a mental illness but do not have a co-occurring drug or alcohol abuse issue.
i: I don’t understand, the only community resources available are for those with alcohol or substance abuse problems? So one can’t just go through mental health court unless they have BOTH a mental illness and a co-occurring substance abuse issue?
KP: Basically. The mental health resources just aren’t available otherwise. One of our clients is out of jail now and doing well, but he really languished in jail because he didn’t have a substance abuse problem [co-occuring with his mental illness]. We were told that if they don’t have a co-occurring substance abuse problem with their mental illness and no insurance, then there’s pretty much nowhere for them to go in Memphis for treatment. They did end up finding this particular person a home that he can stay in and be monitored, so he is able leave and go to counseling.
That was a big disappointment for me to hear that if you just have a mental illness then there are no resources.
i: So is there overlap between the other specialty courts—drug court and veteran’s court—and the mental health court?
KP: We have better more well-rounded services specifically for people with mental illness. The drug court is really more for felony convictions. We have gotten some referrals for cases that were initially referred to either of those two courts when they felt that we were better equipped to deal with the mental illness than they were. We are linked to resources within the community that specifically deal with mental illness. Our court is also much less punitive than specialty courts generally. Everyone understands, from day one, that jail is not a good way to get through to people dealing with mental illness.
In this court, clients can also often have their expenses expunged, which is something that’s not available in other specialty courts. Drug court can be very expensive, for example.
i: To end things off on a good note, what are some of your goals or aspirations for this system?
KP: I’d like to see clients move through the system faster. We have one client who has had 140 convictions in the past. And that’s not including other arrests. Those are just convictions. He’s not used to having a court take a chance on him or saying, “That’s okay that you left that rehab facility. We’ll try something else." Or "We were really worried, we’re really glad to see you again.” So I think it’s a very important system in that regard.
Another goal is to move away from using incarceration as a form of punishment for people with mental illness.
i: You mean prison doesn’t cure mental illness?
KP: Not yet. But we’ve been trying for decades now and for some reason it’s not working. We haven’t tried hard enough I guess.
Another thing I’d like to see is setting higher expectations for our level of advocacy. I never want us to stop advocating for our clients’ interests. I want to make sure we’re listening to our clients and think of our clients as a whole person, even outside the legal context, even though the legal context is the place we can do the most.
i: Do you have any final thoughts on the criminal justice system’s ability to deal with individuals suffering from mental illness?
KP: I chose to come to Memphis after law school because I wanted to go where I knew my talents were needed the most. That’s what we heard from Jon Rapping and Gideon’s Promise and people who were previously public defenders. They said, "You have these skills and have been working so hard. New York City is always going to have a billion qualified people who want to go there, why don’t you go somewhere not everyone is trying to go?" That’s why I chose to come to Memphis. I knew it was going to be gritty and difficult, and it is. I share stories with people who work in New York or Chicago and they can’t believe that some things can happen in a criminal justice system, and they do in Memphis. Every day. But I am quite hopeful, because even establishing a mental health court is important. And to get so many people who have been working in this system for so long to recognize and understand that incarcerating people with mental illness is not the answer, that gives me tremendous hope that we’re going to be able to move up. It’s a sexy time to be in the criminal justice reform movement. If it can happen in Memphis, it can happen anywhere.
Also posted on Medium here.