Mental Health "Injustice System" - Failures Criminal Rights & Just Dispositions

Introduction

If we are to temper justice with mercy,  we have to consider the individual and societal needs of forgiveness in order to soften (temper) our need for justice. This helps us assure that the punishment, if warranted, fits the crime. Today, we have systems where those with mental illnesses are charged for crimes or wrongdoings and are met with such incredibly harsh and seemingly disproportionate punishments. We do immense harm to a person's spirit and ability to overcome, repent, develop and grow from mistakes and recover. Further, we do specific harm to the basic civil and human rights of all. - paraphrased, author unknown.

As a part of the advocacy work that I do, the mentoring, and peer support, I run into a lot of people who have criminal issues. So far my experience in dealing with the criminal court systems have brought up both challenges and opportunities. One thing I can say with certainty is that it has at times been a huge disappointment.

I live in a County where there are five full-time attorneys in the District Attorney’s Office. Between them they deal with 2,500 cases a year. They’re good people who work hard for our community. Unfortunately this is one of the areas where I found some disappointment. In a meeting with the district attorney, he laid out all the things that he would not consider as being partially or wholly mitigating circumstances. The case I was involved with was abstracted and given to him so we could discuss some of the very real problems with cases like this. I’m not sure he actually read it. He is after all a very busy guy. So we never really got to the heart of the conversation.

Are we seeing these cases clearly and early?

One of the first factors that I saw in this case is that early identification and careful evaluation of the arresting officers reports should have raised a flag that this was not a criminal matter. Apparently the attorney presenting the charges to the court did not read the full statement of the arresting officer. I think in any reasonable level the probable cause that a crime had been committed was seriously in question. In fact, it may have been more appropriate to refer the matter to the adult protective service agency and/or medical professionals.

The second factor that I saw in this case is based on my experience in dealing with people who have mental illnesses. I have practical day-to-day experience with people on all levels of the spectrum and have seen major improvement in the quality of their lives and their ability to reach meaningful recovery. Facilitating this recovery is a large part of what I do. I know many the mechanics from practical experience. I feel qualified enough to say; that based on this lady’s diagnoses and my observations of her leads me to believe that her low day-to-day functioning puts her at risk. I did however feel that with the support of halfway house services, medical stabilization, helping her to build healthy support networks, she would be very likely able to stop having interactions with law enforcement. Actually, with this individual, I know I had a significant impact on the outcome of the case. I appeared in the case as a friend to the court to facilitate communications between the court and the defendant because of her significant mental illness. The significant portion of this mental illness was demonstrated by her largely disorganized thinking and varying functionality from day-to-day.

It was pretty clear to me

It didn’t take a lot of investigation to figure this out. In the arresting officer’s report, he noted some issues that clearly illustrate that mental illness may have been a mitigating factor in the crime. The arresting officer says several things specifically; that she was unable to and not unwilling to follow simple commands, that she was incoherent, and that there were large amounts of psychotropic medications visible to him. He does not mention specifically but I assume all of the medications were properly labeled and prescribed to her.

The judge asked me about my general opinion about the case. I pointed out to him that on the face of the arresting officer’s report that it was a lot more likely to be a psychological crisis than it was a crime. Apparently he agreed with me. Once back in session, the judge asked both attorneys to appear in chambers. I know basically what was said in that meeting. The judge simply asked why we were not thinking of a civil solution in this case. It would seem that both the defense counsel and the prosecuting attorney agreed immediately. The terms for a deferred prosecution agreement were discussed and settled upon.

How can someone consent to an agreement with the court if they clearly do not understand it?

English: Justice and Law Suomi: Oikeutta ja lakia (Photo credit: Wikipedia)

In the presence of the defense counsel I participated in the discussion about the deferred prosecution agreement and what it meant to her. I started to grow concerned after about 45 minutes of conversation with her. In that time she was never once able to clearly articulate and/or paraphrase what a deferred prosecution meant to her and what would be expected of her. I am not sure she understood that the prosecution of the crime would only happen if she did not follow along with the civil requirements. As a recall, she was still asking about how much jail time she was going to receive. It didn’t seem to sink in that jail time was not an issue. I think it was at this moment that her civil liberties started to erode. If she could not understand what the agreement meant she could have never consented to it. I did mention this to several parties. I also advised various parties that to reduce the likelihood of seeing her before the court again she would need more comprehensive services than were being discussed.

This is where my conversation with the judge may have had in negative impact. Since it was so easy to put a deal on the table, she was not evaluated for competency. For various reasons she was ordered to comply with state law that did not suit her needs. Because the civil solution came up so fast, any real understanding of her competency was not investigated. Due to this, I felt that the civil solution on the table was a failed solution. She perhaps did not get the care she needed to avoid re-entry into the system. Approximately one year after the first case I got a phone call from her. She had been arrested again and the circumstances were almost the same as the previous case.

If you want changes in our department sue us

There are people who complain about costs in our system. In talking with agencies like the Department of Corrections they realize this is a problem also. They are the ones having to deal with inmates with mental illness in high numbers. I had a director of one such department that flat out told me the only way to affect changes in our organization is to sue us. This is because they lacked funds and resources for treatment.

There are evidence-based solutions that are highly effective. The use of peer support can contribute as part of the answer. Peer support specialists are much more cost-effective and have better percentages of reimbursement rates for their services. Along with this more intermediary respite care facilities are required. Current admission standards for mental illness generally requires that a person say that they have a plan and intention to kill themselves. I think more investigation and research by the criminal justice system needs to be done in this area as viable methods to reduce re-entry are available and these programs are financially prudent.

Training is an important issue also. The need for more training for officers in crisis intervention may help to resolve issues without arrest. It might help identify mental health crisis as compared to criminal intent. I believe that lawyers need better education about evaluating competency. Traditionally, not guilty by reason of mental defect or insanity is almost impossible to make a case for. Competency to assist in defence should be clear if the person can’t understand what they are agreeing to. Lawyers could have a better understanding of what a successful disposition looks like given the balance between justice and civil liberties. Hopefully  this will broaden the defenses that are available.

Change is needed and can be done

An American judge talking to a lawyer. (Photo credit: Wikipedia)

It would seem that the civil and criminal liberties that we all enjoy as citizens are desaturated for those with significant mental illnesses. Insight on this factor comes not only from this case, it also comes to us right from the jails and prisons themselves. The Bureau of Justice statistics reports that says 61% of state prisoners have a mental illness, jails have a rate of 41% of inmates with mental illness. In general our population has about 5% of people who have diagnosable severe mental illnesses in any given year. As an example, our County has around 80,000 people. This suggests that 4000 people in our community have major psychological problems. Considering the high numbers of people with mental illness in the justice system, how many of these cases are being misidentified? How many cases are we missing? Also, what can we do with these people anyway? For many states and counties the resources are very restricted. There are cost-effective and effective recovery methods and resources that can be developed and tend to reduce re-entry into the system. With some willingness, people with mental illnesses can receive the benefit of justice tempered by mercy.