Although risk management has been studied in a variety of contexts, risk management has not been traditionally framed or analyzed as a function of the judiciary. This article examines how mental health court judges take on risk management functions. This article does not argue for or against judges taking on risk management functions but instead, attempts understand how risk management approaches by judges play a growing role in the criminal court process. I argue that mental health court judges are “dynamic risk managers.” Rather than simply processing cases and allowing criminal defendants with mental illnesses to cycle in and out of the criminal justice system, judges manage risk and simultaneously attempt to resolve the underlying mental illness and heal the defendant. Specifically, with the assistance of team members, including the public defender, prosecutor, behavioral and mental health specialists, and others, the judge performs three tasks: (1) she conducts a risk assessment in which he evaluates the defendant’s potential harm to himself and the public; (2) she evaluates and implements a treatment plan designed to manage and reallocate the defendant’s risk; and (3) she monitors the risk over a period of time often requiring frequent return visits by the defendant.

Judges behave dynamically because they continually assess and adjust the management plan depending on how the offender is progressing. I show how this new conceptualization of the judge’s role affects how the criminal justice system processes defendants. When performing risk management, mental health court judges function as a hybrid social worker (diagnosing and implementing a plan) and probation officer (monitoring the offender to ensure compliance), focusing less on group characteristics and managing the risk of categories of people to effectuate incapacitation and other non-rehabilitative goals, and more on therapeutically intervening in each individual’s life. When functioning in its ideal form, the collaborative, team-oriented approach of mental health courts shifts focus of the criminal process toward healing and away from punishment.


Included in

Law Commons