Mental Health Courts: A Way Beyond Punitive Measures for the Mentally Disordered Offender?

Abstract

New Zealand prisons are facing a prison overpopulation crisis. Despite the widely accepted view that prisons are not appropriate institutions for those suffering from mental disorders, studies have shown that mental disorders are disproportionately overrepresented among inmates. It is argued that this is due to the 'criminalisation' of the mentally disordered offender and a social and political preoccupation with imprisonment as the prime form of punishment. This climate has given birth to punitive measures for the mentally disordered offender, namely; the 'hybrid' sentence. An analysis of this sentence and its underlying principles reveals the criminal justice system's is ill-equipped to deal with difficulties posed by the mentally disordered offender. Further, this analysis highlights a 'revolving door' phenomena and the numerous opportunities for mentally disordered individuals to be recycled through the criminal justice system without receiving any therapeutic intervention. This paper argues that ultimately the provisions for sentencing the mentally disordered offender are contributing to the prison crisis and that these failings are indicative of a lack of a sound theoretical base. It is suggested that theory of therapeutic jurisprudence and the mental health court model provides a solution to the problem and ultimately and desirably could allow for the diversion of the mentally ill away from prisons and into the comprehensive health care system.