By Dan Williams
Last week summed up the trial of one Casey Humphrey. Casey is an adult living with Paranoid Schizophrenia. When he was young, 10 years ago, he would get into fights with his father. It was during one of these particularly volatile episodes that he inflicted stab wounds on his father. His father was treated and released. Casey was not so lucky. Casey was charged with enough to land him a maximum sentence of 10 years in prison.
At this point Mr. Humphrey had a choice, he could go to trial, potentially face more charges and the aforementioned sentence; he could make a plea bargain, probably reducing the sentence, but still not getting the attention he needs while in prison; or he could plead not guilty by reason of insanity. He entered the NGI plea.
There was recently another case, which I’ve been asked to not identify, in which the defendant had a history of mental illness. Let’s call this case “Smith.” When Mr. Smith came into contact with the police, things got a little rough, as they have many times, on record, in the past. This was not abnormal, nor was this night any worse than the others.
In this particular case however, the judge saw fit to bar any testimony about the defendant’s mental history from the trial due to relevance. Evidently, obstruction through violence is a general intent crime rendering the mental history and state of the accused irrelevant.
The merits of this decision are a discussion for another day. What the defendant was left with, in terms of options, was a trial he was pretty much assured to lose, a guilty plea, or the NGI plea. This client was CONVINCED that if he pled not guilty by reason of insanity, he would spend the rest of his life in a mental institution. Mr. Smith pled guilty.
So the question is, was Mr. Smith wrong? I’m not suggesting that every NGI plea is doomed to spend their lives in and out of mental facilities, but it can be far worse in terms of time served to make an NGI plea than to just plead guilty.
When a defendant enters a plea of NGI, the prosecution has a choice to accept the plea or push the plea to trial. Usually the plea is accepted, and when it goes to trial, the insanity defense rarely works. In the end, a successful insanity plea means a much longer path to any form of freedom.
In a normal NGI case, the plea itself is actually a guilty plea, in terms of everything but the mens rea, or criminal culpability, due to insanity. This plea circumvents any sort of prison time and replaces it with time in a secure mental care facility – a secure mental care facility without the same rules with regard to parole and good time that would come with being incarcerated.
If somebody commits a crime and is sentenced to 10 years in prison, the chances that they will serve those 10 years are astronomically low. Under some sentencing schemes, good time can give you up to 2 days for every 1 day served, and then there is the possibility and near inevitability of early parole.
Now if that same person commits a crime and enters an NGI plea, not only does the sentence automatically max out, but it does so in a way that makes getting out early nearly impossible.
The bad part is it doesn’t stop there. Every two years, the DA, at the request of the hospital, can bring a petition to extend the defendant’s term by two years. So now not only has the defendant served nearly double the time he would have in a prison, but he has to fight for his freedom, or serve still more time.
After those extra two years are served, the DA can bring back the petition again, and force a trial. And Again. And Again. And Again.
So Mr. Smith wasn’t right, but he was, unfortunately, on the right track in so far as his logic. What we saw with Mr. Humphrey was the fight for his freedom. His Mom and brother were confident in his ability to function in society and take his medication.
His main psychiatrist even testified that she didn’t think that he would be a danger to himself or others if properly medicated. He still had to fight. His mom had to fight. His brother had to fight – all of this after he had served his time.
And what of Mr. Smith? Attorneys for both sides believed, and said in the courtroom, that he needed to be medicated, and just needed help, but that ultimately, shouldn’t be criminally punished. Yet when they came out of chambers, it was clear that this wasn’t the way things went behind closed doors.
The prosecution put on record that the NGI plea would be the proper way to handle a case like this, but didn’t mention, like this article does, all of the things wrong with this plea. Mr. Smith, while probably overcautious, would have served more than double the time his guilty plea afforded him; and double again if the petition was granted for two years extended stay.
Is it right to make people, especially those that can be mentally unstable, choose between a short amount of time in a place that would be hellish for them, where they can’t get the care they need, or a extraordinary amount of time in a place where they CAN get care? If Mr. Smith felt like he had other options, don’t you think he would have taken them? It’s unfortunate that the mentally ill in a 21st century justice system still get the shaft.
I agree and believe that this is a terrible shame on our system of justice. And, I do not believe that it is a shame on our justice system alone. I believe that where the problem lies is with some still fairly commonly held misconceptions within our society. I have heard each of these statements from otherwise well educated people.
1) People have to be held accountable for their actions regardless of their mental state at the time.
2) Mental illness cannot be controlled so they should never be released.
3) These people are “monsters”. The dehumanization argument which carries the false premise that such
a thing could never occur to me or within my family. Those who themselves have fought mental illness
or had a loved one involved in the battle know better.
4) They are faking it. Spoken by a doctor who does not happen to believe in “mental illness”….frightening
but true.
Until we, as a society are willing to accept “insanity” as a group of illnesses in the same way we accept epilepsy, or diabetes, or a heart attack as illness, and craft laws that treat the “insane” for their specific illness, instead of “punishing them” we will not see an end to this problem.
I think that day is coming sooner than you might think. One of the hurdles has been physical evidence of mental illness as an illness. Last year however, at the SF Justice Seminar, we saw the next line of research on mental illness with MRI scans of the brain showing how the brains work physically and chemically different for schizophrenia and bipolar disorder (I’m not expert, but it seems that those two are actually opposites in terms of brain function) – the difference between those brain scans and a normal brain is stark and unavoidable. I think once this research mainstreams more, people will have a better understanding of the disorders (and patients won’t be able to “fake” it).
Because there is no limit on the number of 2 year extensions that can be imposed after the insanity acquittee has served the initial maximum term, an insanity plea can result in an indefinite commitment. So Mr. Smith was right to be concerned about being confined for the rest of his life. It can be a daunting task to prove that one is no longer dangerous, but not impossible as we saw in the Humphrey’s case.
Prior to 1985 in California, extensions could only be imposed on acquittees held as a result of violent felonies but that was changed so that all acquittees are now subject to extensions. Additionally, insanity acquittees must initially serve the maximum term possible with no time reductions for conduct, work or pre-trial confinement. As a result, insanity acquitees are confined for much longer terms than individuals convicted of identical crimes.
Since the insanity defense is rarely used, prisons are now filled with mentally ill individuals and every prison in California offers mental health treatment for inmates. While there is certainly a lot of room for improvement in the treatment available in prisons, it is not correct to say that there is none available.
medwoman wrote:
> Until we, as a society are willing to accept “insanity”
> as a group of illnesses in the same way we accept epilepsy,
> or diabetes, or a heart attack as illness, and craft laws
> that treat the “insane” for their specific illness, instead
> of “punishing them” we will not see an end to this problem.
People with “ilnesses” such as epilepsy and diabeted don’t stab and kill people as often as people that have an “ilness” such as “insanity”.
I don’t want to “punish” the insane, I just think that after they stab and kill someone it might be a good idea to lock them up before they stab and kill my kids (or medwoman’s kids)…
that’s not completely true actually. people with diabetes often – if their sugar is unregulated – can be violent. people with brain tumors or early dementia can be as well.
the question is whether or not the best way to protect people is simply to lock people up. the other point that you seem to be missing is that if an individual takes the straight time, then they just get punished for the crime but often are not treated. that creates as dan williams argues, a perverse incentive structure, where the best interest of the person at least from a freedom standpoint is not plead insanity. is that what you want? because that’s what you got.
“There was recently another case, which I’ve been asked to not identify, in which the defendant had a history of mental illness.”
Who asked you not to identify the case about which this article is based? Why?
I haven’t talked to Dan about this piece, but my guess is that he was approached in court by someone who told him not to publish the information or not to use the individual involved. There are a lot of reasons for that, particularly if the case is live. I don’t see why it’s relevant to the material point he is making.
medwoman, while I agree that your list of four mistaken beliefs is accurate for some individuals, we (as a society) have moved beyond these prejudices being able to drive our justice system and it’s accepted in our society that mental illness is an illness and one that is treatable.
That a member of your profession does not believe there’s such a thing as mental illness certainly does boggle the mind. I guess it takes all kinds, as they say. Please provide his/her initials to keep your Vanguard friends from stumbling into that office.
David lists some of the advances on the horizon. In addition, 1) we’ve long ago institutionalized(!) the concept that the mental state at the time of a crime is a factor in establishing guilt or innocence, 2) we don’t keep people institutionalized just because some people might think mental illness is not cure able, 3) while some think that people who do monstrous things are “monsters,” this is a distinction that doesn’t have much to do with justice, and 4) some do fake it and some defense attorneys claim it when it’s not accurate, but that’s why we have trials.
SouthofDavis
[quote]People with “illnesses” such as epilepsy and diabetes don’t stab and kill people as often as people that have an “illness” such as “insanity”. [/quote]
While true as written, your observation ignores that people with such illnesses as epilepsy, diabetes, narcolepsy and cardiac conditions can be as much a danger as the schizophrenic patient wielding a knife. Any of these illnesses can, if uncontrolled lead to a person unexpectedly losing consciousness while driving. This is why, if certain medical conditions are not adequately controlled for a predetermined amount of time, the patient is not able to drive legally. This is also true for people whose alcohol dependency is manifested by DUI’s.
I do not want people suffering from any kind of illness to suffer or be punished. I also do not want any of them to be a danger to themselves or anyone else including your children or mine. I just believe that like risk conditions should be treated equally. It is my belief that many more people have been harmed by impaired people driving their car than have been by schizophrenics with knives. This should not be an either/or situation. All those with illnesses that have the potential for, or who have actually harmed others, should be getting appropriate treatment and their timeline for release should be dependent on their medical condition, not some arbitrarily established minimum.
“There are a lot of reasons for that, particularly if the case is live. I don’t see why it’s relevant to the material point he is making.”
I’m not sure what you mean by “live.” Dan’s point is that “Smith” (already) pled, and did it under the mistaken belief that an insanity plea or finding brought a life sentence in a mental institution.
If the prosecutor and defense attorney had made a not guilty plea agreement, is Dan suggesting that Smith is just too insane to help in his own defense and refused to accept? Is he saying the judge allowed such an Incapable defendant to plead guilty in the face of the prosecution and defense council arguing that he was not guilty.
Illustrating some point with an anonymous case with questionable facts is an odd approach. I guess any kind of case description claiming to make a “material point” can be used to set off a debate. The discussion might be better served with an actual case or even a complete set of hypothetical facts.
—
“Now if that same person commits a crime and enters an NGI plea, not only does the sentence automatically max out, but it does so in a way that makes getting out early nearly impossible. The bad part is it doesn’t stop there. Every two years, the DA, at the request of the hospital, can bring a petition to extend the defendant’s term by two years. So now not only has the defendant served nearly double the time he would have in a prison, but he has to fight for his freedom, or serve still more time. After those extra two years are served, the DA can bring back the petition again, and force a trial. And Again. And Again. And Again.”
If the person has successfully been treated and no longer is mentally ill, isn’t he released without conditions? Once released, the not guilty by reason of insanity person doesn’t get tried again.
Release is conditioned on successful treatment of the disease, not on some arbitrary time. What alternative do you suggest? Would you rather be released healthy after two years or after only one year in prison with little treatment?
[quote]Release is conditioned on successful treatment of the disease, not on some arbitrary time. What alternative do you suggest? Would you rather be released healthy after two years or after only one year in prison with little treatment?[/quote]
I don’t believe that these should be one’s only two choices. Let’s take that hypothetical that you mentioned.
So, these are my set of hypothetical facts. Let’s suppose that John Doe has a psychiatric condition that is well controlled when his blood levels are in the therapeutic range. Let’s further suppose that the range is narrow and depends upon him maintaining adequate blood levels. Now let’s suppose that John gets a bad viral gastroenteritis after his doctor’s normal working hours. He takes his dose as usual, vomits repeatedly shortly after taking it. Now John, being responsible calls, his doctor’s exchange and in the opinion of the advice nurse would be a greater risk of over dosing than of having his blood levels drop and advises him to wait to take his next regularly scheduled dose. John, being responsible, does as advised with the unfortunate consequence that his blood levels drop, something triggers a rage or delusional thought process and mayhem ensues with a family member attacked or dead.
John actually did nothing wrong. His medication failed him. Should his only two choices be one year in prison or a minimum of two years in a mental hospital when what would fix the problem would be to get his blood levels back to a therapeutic range ? Now this may sound far fetched to you, but stop to think that the correct blood level of an anti -seizure medication may literally be the difference between making it home safely vs seizing while behind the wheel on the freeway.
Except, perhaps, in capital cases or cases where the sentence is life without possibility of parole, I’d think long and hard about advising a criminal defendant to plead NGI. A primary reason why an NGI plea is, if not a life sentence, an indefinite sentence is because the consequences of the plea are placed largely in the hands of the presumed expertise of psychiatrists.
While the evidence of biological and structural correlates of certain mental disorders is growing, the science is in its primitive stages. There may be observed structural and physiological correlates of, e.g., schizophrenia but not all schizophrenics evidence these features and not all with these features are schizophrenic. Moreover, the vast majority of people with schizophrenia and other mental disorders are not dangerous and most dangerous people do not have schizophrenia. So, it’s not clear what even a validated method for identifying the disorder could be used for in the criminal context.
There’s also no scientifically validated methodology for predicting dangerousness. So, personal liberty is placed in the hands of psychiatrists who make predictions based on their “professional experience”—and the judicial system gives these opinions the status of other, empirically based medical opinions because it’s the only thing they’ve got to go on.
The mental health system is woefully inadequate and far too reliant on involuntary treatment and confinement. As a start, if we put more resources into prevention and community mental health services, then, perhaps, far fewer people would have to confront the choice of imprisonment or indefinite institutionalization.
medwoman, you’re the doctor so I wouldn’t presume to question your case descriptions. I sure hope John’s constant on the edge condition isn’t very common. However, let me guess how the two cases might proceed.
John Doe, having killed his brother while consumed by rage and delusion, will end up not guilty by reason of insanity. Being responsible, John agrees that he should remain under supervision in the state hospital for some in the state hospital, at least until doctors are able to adequately diagnose him and provide a successful regimen and until he displays the ability to keep his blood levels within the critical range that keeps him from killing people.
In fact, John seeks out a period of additional voluntary institutionalization for testing and to build confidence that he won’t kill his sister upon his return home. Once his doctors have provided supervision and tests to determine how to stabilize him if he vomits his medication again or if similar situations arise that take him out of his narrow safe range, he moves back home.
To say John did nothing wrong is incorrect; each of us carries some responsibility for keeping ourself in a condition that doesn’t precipitate mayhem. For most people, it’s as easy as not getting drunk. Since John got bad medical instructions for his caregivers who knew of his critical condition, he successfully sues his physician and the exchange for malpractice and collects $10-million.
One year later, he again suffered intestinal distress and promptly checked into a prearranged hospital to supervise his crisis, where he thanked God that the justice system understood his illness and forced him into treatment.
(If, on the other hand, John is unable to maintain safe blood levels, he will spend a long time under supervision in order to protect his sister and others with whom he might interact.)
George Smith was not prosecuted because there was no evidence that he was negligent. In spite of the fact that he had taken his medication as prescribed, the level prescribed turned out to be too low to control his seizures and an accident resulted.
The D.A. decided not to file no charges and took away his license until George was seizure free for two years. During this period without driving privileges, George successfully sues his physician for malpractice and collects $2-million.
Eric Gelber said:
[quote][Except, perhaps, in capital cases or cases where the sentence is life without possibility of parole, I’d think long and hard about advising a criminal defendant to plead NGI/quote]
I agree, it is always baffling to see an NGRI plea for lesser offenses. Perhaps the defendant believes he/she could not survive in prison and would rather serve a potentially indeterminate term in a state hospital? Maybe, but sometimes I think it is simply legal malpractice.
[quote]medwoman, while I agree that your list of four mistaken beliefs is accurate for some individuals, we (as a society) have moved beyond these prejudices being able to drive our justice system and it’s accepted in our society that mental illness is an illness. [/quote] Totally agree. The astounding increase in the use of antidepressants alone shows this. The stigma against mental illness is most definitely something that belongs to older generations and is most certainly on its way out.