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Criminal defense and the mentally ill

Sometimes you can tell right away.  I had a case once where I met my client and his father at a pre-indictment pretrial, and within a minute I knew my client was psychotic.  I went in and told the bailiff we needed a referral, we sent him down to the psych clinic, and it took them the same amount of time it took me.  They called up to the bailiff and said he was actively psychotic, and needed to be remanded.

Sometimes you can't.  I had a case once where I met the client over at the jail and spent half an hour with her, without noticing any problems.  I nonetheless had her referred to the psych clinic because she'd been diagnosed once as bipolar.  They called a couple of weeks later and said she had to be sent to a psych hospital to be restored to competency.

There are thirty-four judges on the general division of the common pleas court here.  Five of them have been designated as "mental health courts."  That's probably not enough; estimates are that over half of the American prison population has an identifiable mental illness of some sort.

The mental health court system here doesn't really treat that problem, for a number of reasons.  First, it's an on-off switch:  if you have a mental illness with psychotic features, you get on the docket, if you don't, you don't.  Bipolar disorders often don't involve a psychosis; depressive disorders rarely do.  Yet people with those disorders would benefit as much from treatment as psychotics.

Second, there's a problem with attorneys knowing how to handle those kinds of cases.  To take cases on the mental health docket, lawyers have to be qualified to do so.  That qualification requires taking a six hour seminar.  I've been on the mental health docket for twelve years.  I took the seminar twelve years ago.  I'm guessing that there have been some advances in treatment of mental disorders in the past decade or so that I probably should have learned about.  I'm also guessing that there's not one lawyer in ten on the mental health list that can tell you precisely what should happen if your client is found to be unrestorable to competency.  And that's a legal question; things like the latest meds, or when bipolar disorder ventures into a psychotic territory, can be an even bigger mystery.

And a couple recent cases from the 8th point to the problem of lawyers who aren't on the mental health docket.  Last year, in State v. Elliott, the judge began a plea colloquy by asking the defendant if he was on any medication.  He told the judge he had schizophrenia, and had been off his meds for a couple months.  The judge asked him about what kind of symptoms he had, and he responded, "Just loud outbursts, but I be okay freely.  It's under pressure."  The attorney had never raised the issue of competency.

Similarly, a couple months ago in State v. McClendon, the defendant told the judge he was on medication for schizophrenia, was hearing voices, and when asked by the judge when was the last time he felt clearheaded, responded, "Pretty much never."  The issue of competency hadn't been raised there, either.  Quick rule of thumb.  In my initial interview with a client, one of the things I ask him if he's ever been diagnosed with any mental issues.  If the answer's yes, I ask the judge for a referral.  Err on the side of caution.

Some of this is the courts' fault, too.  There are numerous cases floating around which hold that even a defendant who's psychotic can be found competent.  Well, that may be, but I'd much rather have a psychiatrist's opinion on that than a judge's or a lawyer's.

The biggest problem, though, isn't identifying those with mental problems, it's what to do about them.  There are few areas where the aphorism, "a penny of prevention is worth a pound of cure," applies more than in the field of mentally ill prisoners:  ensuring that a schizophrenic takes his meds may literally be a life and death matter, if not for the schizophrenic, then for someone else.  Yet mental health treatment for everyone is underfunded, and in jail and prison is pretty much hit and miss; community-based re-entry programs that should provide services and case management for mentally ill offenders transitioning into the community are in the worst shape of all.

More money, more personnel, better training.  Hey, it could happen!


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