Wednesday, December 10, 2008

The Mental Health System

I mentioned in my last post, a month ago, that I am doing a new area of criminal defense. I'm still a PD, but I now handle those defendants who have been found Not Guilty by Reason of Inasanity (NGI), and are being held within the web of the criminal mental health system. It is a frightening system, and that is being said by an attorney.

First, juries are notoriously skeptical of NGI defenses in the first place, so I don't get many "close" cases. I have two cases, out of around 90, where the defendant was found NGI after a jury trial. The rest pled (or did a "slow plea" court trial in front of a judge) into NGI land. The vast majority of defendants who went into NGI land by plea have done far more time than they would have had they simply worked out a deal in the first place. Let me be clear: I haven't seen one case where the defendant isn't at a minimum, mentally ill. I have a tiny number of cases where the mental illness is in remission, but they were clearly mentally ill at one time, and were almost certainly mentally ill at the time of the crime. Whether they were actually NGI at the time of the crime we will likely never know, but a fair number would not have passed muster in front of a jury. The irony is that the vast majority of my clientele would have done far LESS time in prison than they end up doing in the mental institution.

But that is only where the fun begins. Under the NGI system, defendants can be extended past their maximum commitment date (based on their plea) every two years. They get a jury trial in extension cases, court trial when it is a life case. But some of these guys are so institutionalized that they don't want a trial. They hate being in a mental institution, but they have no idea where else they would go. So they end up begging to admit the extension and stay in. And the social workers and mental health workers constantly prey on their insecurities and try to get them to admit petition xtensions, "for their own good." Those with a life sentence never reach their maximum time, so the trial they would get is very weird (PC 1026.2 - Burden of proof on defendant, and trial is by court, not jury) and difficult to win. Lifers do a lot of time, but then again, lifers in prison do a lot of time as well.

The cost to house defendants at one of the mental institutions in this state is $130,000+. Many of my defendants are nowhere near violent enough to justify being in a mental institution (some are, of course), but the state hasn't made anywhere else available to put them. We have something called the Conrep program, but its capacity is staggeringly, woefully inadequate for the demand. Plus, Conrep picks and chooses who they want, such that the people they take are really not worthy of such close scrutiny, but ought to be released outright. And the mental hospitals (like Patton State Hospital or Metropolitan State Hospital) simply never want to let to let NGI defendants back into the community outright - they steer their huge patient loads toward Conrep, even when Conrep has no place to put them (and no incentive to take them).

Even though I'd rather not simply release these guys to the community without some sort of outpatient treatment, there really isn't any. The choice is keep them in an institution that costs $130,000 per year, or nothing. The LPS system isn't any better, because many of those guys are also housed at Metropolitan State Hospital, but on a different wing.

I have people that I am trying to get out (and some that I have successfully gotten out) who really only need minimal help. But the mental institutions (and the DA, who fights with me on just about everything) won't let anyone go without a fight, and when they do let someone go they boot them in the ass on the way out. And there is a viciousness in this system that is frightening. I had a guy who had been in a mental institution for 13+ years and we did his trial. He was adamantly opposed to the idea that he was mentally ill (his attorney (me) respectfully disagreed), his case was nonetheless a decent case. His actions had been relatively benign on the unit, and he pretty much refrained from fighting and the like. But when we went to trial to fight his extension, at trial the state's doctors diagnosed him with an Axis II Anti-Social Personality Disorder, an affliction I like to call the "asshole diagnosis." After treating this guy for 13+ years, no one EVER realized he had an Anti-Social Personality Disorder until he decided to go to trial for the first time. THEN they stick him with that bogus diagnosis. Mean, very mean.

As I said, a broken system. I will post more later within a week.

Dennis Wilkins
The Guest PD Blogger


The Creative Lawyer said...

We had a state-wide conference on the issue of alternative sentencing for the mentally ill. All the players were there: state legislators, non-profits, mental health care providers, prosecutors, probation, and the defense bar. On the second day of the conference, we broke out into counties to discuss each communities individual needs. This was the brainchild of a judge in my county that seems to want to do the right thing here. I can't speak for the other counties but it was the biggest waste of time. First, the facilitator for my county was a prosecutor, which set the tone for the conversation. I spent that day getting many a furrowed look from probation and prosecutors when I tried to discuss issues like (1) understanding relapses when people stop taking their medication, (2) self-medication, and (3) working to keep the mentally ill from even getting to the criminal justice system in the first place. The day really fell apart when a prosecutor took issue with a legislator using the term "restorative justice" which sounds too "soft." Yeah. We argued about that for the last hour before we realized no one was listening to each other anymore and adjourned for the day.

So, currently, mentally ill people are left with long criminal histories. Even the ones who initially avoid jail end up there eventually. The State Hospital just calls the cops when a patient gets unruly. The person ischarged with assault or disorderly conduct, carted off to jail, and held without bail. And the cycle begins all over again.

Even clients with less serious mental illness diagnosis get harrassed by the police and prosecutors. It's like they know what buttons to push. Oh, the kid with oppositional defiance disorder? Just keep telling him what to do and really get in his face about it. Don't forget to throw in significant amounts of taunting. Because he'll respond well to that. My client with anxiety disorder? Please tell him every time you see him that he is going to jail for a really long time. Also, be sure to let him know you think he's a "loser" and is going to get hooked back on drugs by the end of the week. It's all about setting these people up for success. (I did not make these 2 examples up either.)

Sorry to be such a downer, but your post struck a nerve. As a new public defender, I am appalled at the number of mentally ill individuals getting screwed by the system. ANyone have any success stories?

Anonymous said...
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Unknown said...

You have interesting posts Counselor, I would not be surprised if you see a certain professional utilizing NGI as a defense in the near future. Anti Depressants mixed with Alcohol does not make a strong case for NGI. We are responsible initially for our own actions and the choice to mix what is well known to be a poor combination is just that, "our own choice."

Richard Sosa, D.C.

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