Tuesday, February 5, 2008

Mental Health Will Drive You Mad

After watching the raging screaming match (I mean, debate) between Anon C, Ron in Houston, and Mark on one of the other posts I've done, I saw that there was a mention of the mental issues in the criminal justice system. Since my latest posts may be a bit, ahem, partisan, I thought I might address a topic of concern to everyone on both sides of the Bar.

I think there is a major misunderstanding when it comes to the prosecutorial view of how mental health issues should be handled. I think that the blame behind that misunderstanding lies with the legislative, and not the executive branch of our Texas Government.

Don't nod off in the middle of this Civics lesson, because I've got a point.

When the Defense Bar and mental health advocates around the country and the world say that Texas is woefully inadequate in their ability to deal with the mentally ill, the response of most prosecutors that I know is "no shit".

But the law that prosecutors enforce is not the law that they wrote.

Prosecutors often times find themselves in the extremely uncomfortable position of having to negotiate some sense of justice and public safety without trampling on those who have legitimate issues with their mental health.

Now, before I go too far off into this argument, I know that someone out there is already calling bullshit on me, and their rallying cry for that is Andrea Yates.

I was at the Office when both Yates I & II happened. I saw the pictures of those precious children, and call it cliched, but those pictures still haunt me.

The children in the bed. The little boy floating face down in the gray water of the bathtub.

I didn't have a thing to do with that case, but what I saw are things that still make me sick to my stomach. And if you want to ask me did I feel sorry for Andrea Yates and her condition, I will be quite honest with you in saying, "no, I didn't".

And although I don't know the full details of everything about the case, I know that Andrea Yates had previously halted her plan to kill her children because she knew a relative was coming over who would have stopped her. Under the definition of insanity in the State of Texas, I think that Kaylynn Williford and Joe Owmby were well within their rights to believe that Andrea Yates knew the difference between right and wrong. In my opinion, under the law as it currently stands, Andrea Yates was guilty.

I also believe that the D.A.'s Office was right to seek the death penalty on her, even though they knew it would more than likely never be given by a jury. Why? Because this case was such an absolute freaking anomally that perhaps the only way to ever figure out what should happen was to submit it to 12 members of our community.

If you remember, Joe Owmby eased off the throttle very much in his closing on punishment ("If you don't sentence her to death, we will know that it wasn't because you forgot about those five children"), and in doing so, he submitted the case to the public conscience through the jury.

And he earned my eternal admiration in doing so, as well.

I digress.

The issue with mental health is that the system doesn't have safeguards to protect the general public from those who are mentally ill and dangerous. For those of you who don't realize it, the process for those found to be not guilty by reason of insanity creates a real public danger because there are no safeguards.

They get shipped off to Rusk or wherever. Doctors give them medicine. They become more coherent. Doctors pronounced them healed. They ultimately get released (not always, I know). They get back in the real world. They stop taking their medicine. BOOM - back to square one.

I'm not trying to be an alarmist. I'm calling for realistic help for these folks. They aren't responsible for their actions criminally, but that doesn't make them any less dangerous.

Being formerly/currently in the Executive Branch of the Texas Government (I don't really consider the D.A.'s office to be judicial. Some may quibble with me over that one), I can't offer any meaningful answers. I am no legislator, and I never will be.

But somebody really needs to be coming up with some meaningful ideas for change.

And if by chance a legislator is reading this, please listen to any and all ideas for change, even if you are suspicious of the source. Put aside your ideas that all people claiming insanity are malingering and operate under the theory that the system that needs to be in place is for those who are truly mentally ill to the degree that they aren't responsible for their own actions.

I would submit to you that I am certainly no authority on this issue, and I don't pretend to be. I'm just speaking from a perspective that I know to be real. Yes, prosecutors will always have a strong suspicion of defendants whom they believe to be malingering, but when they do believe that a person is mentally ill to a severe degree, they are put into a very upsetting position. They don't want to be unfair to the Defendant, but they also don't want to release a dangerous person back into society.

Find some better safeguards, and you'll find more prosecutors that are more willing to be accepting of an insanity defense.

I would submit to you that this is a proposition that both the prosecution and the defense bar could be working together on, quite peacefully.


Ron in Houston said...

As much as we like to think our morality is just a part of who we are, each one of us is one traumatic brain injury away from immorality.

And yes, scientific studies show that the evil dude who was beaten as a child may have been made that way by his treatment as a kid.

The psychology of evil is interesting.

Murray Newman said...

I agree, Ron. That's why I'm always wearing a helmet. Just kidding.

I absolutely agree that we are all products of our environment. The problem is that if we don't do something about it, a vicious cycle will continue. Kids that were abused will abuse their kids, etc.

Finding an ideal result is extremely elusive.

Anonymous said...

Very few people are mentally ill such that they could meet the legal defense of insanity, which has virtually no connection whatsoever to mental illness. Typically, mental illnesses act in the background to color an individual's behavior. Rare is the case in which a person's mental illness can be squarely fixed as the sole cause of a criminal act or a person be said not to know right from wrong. (Yates is a close case, but, notwithstanding the answer to the narrow question of right and wrong, she was undoubtedly severely mentally ill. For my part, I believe she knew what she was doing would be perceived by others to be wrong, but that still does not mean she believed it to be wrong, given the religious delusions under which she was operating.) But that does not make it any less important, because, in most cases, it remains a "but for" cause of crime.

Our focus with respect to mental illness should be on the front end, before the criminal act (and hence before the creation of a crime victim). This would be the best, most efficient (and most humanitarian) way to reduce the incidence of crime across the board.

Obviously, given where we are at, we have to deal with mental illness on the back end as well, and that remains vitally important. But I fear you are taking a much too narrow view of the subject. You should take a day off one day and just read some medical journals on various common mental illnesses, like PTDS, bipolar disorder, schizophrenia, mental retardation and even depression. I think you would surprised at what you find out. (I think you'd be especially surprised at how many accused persons likely come through the court that are mentally retarded that nobody--including their defense lawyer--even realizes.)

Ron in Houston said...


You almost sound like Mark and I are luring you to the "dark" side.

If you're ever looking for an interesting read check out the "Lucifer Effect" by Philip Zimbardo.

A large part of it is about the Stanford Prison Experiment, but it deals with how "normal" or "good" people can sometimes do evil things.

Anonymous said...

Like PJ - I agree that more "mainstream" mental health are issues that we deal with. We truly don't have many Andrea Yates type cases.

It is your guy who has untreated depression, who drinks to alleviate his symptoms (rather than go and get actual medicine because he doesn't want to be perceived as "crazy.")- then he picks up a couple of DWIs...or maybe the person with bi-polar disorder who picks up a harassing communication because she is manic AND can't accept that when her ex-boyfriend said the relationship was over, he meant it. And a lot of untreated PTSD - people who are victimized as children end up here a lot (not saying that excuses anyone's responsibility - just saying it is out there).

TCDAA Prosecutor magazine is coming out with a couple of articles this year to talk about these issues.

If anyone wants more info - though - you can check out www.nami.org - the best info around, IMO.

Good news too - the Probation Dept is doing a lot of good things around mental health - I think people are starting to understand it more and more too - just in general.

Anonymous said...

Well it is all Geraldo's fault. :) Actually, it kind of is his fault. His reports on the deplorable conditions in the New York State mental health "system" (if you can call shoving people into the sanitarium and ignoring them while they soil themselves a system) in the 1960's brought about a hue and cry for freedom and least restrictive means. While the reforms were good to some extent, the least restrictive means reforms went too far. For a continent that was invaded by witch-burning religious zealots up in Massachussets, we never seem to find the middle ground.

We should be able to find a way to systematically supervise people who can function on psychotropic drugs to ensure they are taking their prescriptions without locking them away. Why doesn't the legislature change the statutes to allow what would essentially be a half-way house or mental health "probation-type" supervision? Well, it costs money and is not sexy like making burglary of a motor vehicle a felony. I personally would feel much safer if the guy who broke into my car 10 years ago and stole my sport coat when it was 29 degrees had proper mental health care and supervision than the fact that such conduct is now a felony if he does it again. It is time to quit abusing the criminal justice system by making it deal with almost all of the mental health issues and actually give the probate courts and the psychiatrists sufficent tools to supervise these guys.

One other thing we need to remember is that probation should not be designed to be so punitive that it is unworkable for a substantial portion of the population. Loading up a probationer with fees he or she cannot afford effectively denies one tool to prevent recidivism of defendants with mental health issues and effectively becomes nothing more than an irrelevant dog and pony show for the voters. TDCJ should not be the largest provider of mental health services that it is right now in this state.

As a side, anyone remember Lykos' usual probation terms? She's not exactly an improvement to the system we have.

Jason said...

What has always upset me about mental health advocates is their confusion about using force on violent mentally ill people. They act like police shouldn't defend themselves against violent, mentally ill people. They seem to think officers should only defend themsevles if their attacker intends to hurt/kill them. Cops do not turn the other cheek because someone refuses to take their meds.

Anonymous said...

Jason wrote: "They seem to think officers should only defend themsevles if their attacker intends to hurt/kill them."

It's actually one of our constitutionally protected rights not to be subject to violence by officers of the State unless there is an imminent risk of bodily harm to an officer or third party. So that's probably why a lot of people (rightfully) think that.

Michael said...

I find the use of the argument "the law that prosecutors enforce is not the law that they wrote" specious here. No, HCDA did not write the insanity defense statute, no more than it wrote HB 2391, a law that numerous "tough on crime" DAs choose not to enforce as it "sends the wrong message". Prosecutors often overlook laws they disagree with, as is frequently the case with Section 2.01 of the Code of Criminal Procedure.

A lot of factors should rightly be considered in determining whether a particular defendant is insane. The gruesomeness of the crime scene photos is rarely among them. Yes, dead body photos are not attractive, but they have little probative value regarding the sanity of the person who killed them. Even less relevant is whether the prosecutor's co-worker doesn't feel pity for the defendant.

So how many defendants found not guilty by reason of insanity have been confined to a state mental hospital AND get treatment AND get pronounced "healed" AND get released AND stop taking their medicine AND reoffend? I'm sure the answer isn't zero, but I can't think of anyone who's committed a murder after being released from a mental hospital pursuant to an insanity verdict, and I've lived in Texas since 1983. Are all the other "healed" defendants to be kept confined forever because a small percentage may be a potential harm to society?

Yes, we need protection from persons who are mentally ill and, consequently, a danger to society. But mentally ill people need protection from society, too -- especially prosecutors who take advantage of a specious insanity statute, designed not to protect the mentally ill, but to make it them easier to prosecute.