After completing the readings for this module, review the sentencing mitigation report completed for Alexander Blair (Alexander Blair Defense Sentencing Memo.pdf). In 2015, Mr. Blair (then 29 years ol

After completing the readings for this module, review the sentencing mitigation report completed for Alexander Blair (Alexander Blair Defense Sentencing Memo.pdf). In 2015, Mr. Blair (then 29 years ol
When Restoration Fails: One State’s Answer to the Dilemma of Permanent Incompetence Joseph R. Simpson, MD, PhD The landmark 1972 U.S. Supreme Court decision inJackson v. Indianaprohibited the indefinite commitment of criminal defendants on grounds of incompetence to stand trial if there was no substantial probability of restoration to competency in the foreseeable future. Such defendants are still subject to ordinary civil commitment; however, not all will meet civil commitment criteria, given that the criteria for a finding of incompetency to stand trial do not map directly onto the general criteria for involuntary psychiatric hospitalization. If a person charged with a serious crime, such as murder, has no substantial probability of being restored to competency, but does not meet standard civil commitment criteria, compliance withJacksonwould seem to require release into the community. This article describes a legislative response to this possibility that became law in California four decades ago, as well as the outcome of its main legal challenge a few years later. Although the law has received harsh criticism from some quarters, it has survived, and provides a legally straightforward, if ethically controversial, means of answering the question of what to do with a permanently incompetent defendant who is charged with a serious violent offense and does not meet traditional civil commitment criteria. J Am Acad Psychiatry Law 44:171–79, 2016 A 2013 article inThe Journal 1describes an intriguing case from Oregon in which ethics complaints were filed against three parties: a magistrate, the district attorney of Washington County, Oregon, and a de- fense attorney with Portland’s Metropolitan Public Defender Agency. The complaints arose from the use of a so-called “mental illness magistrate hold” (Ref. 1, p 116) in the case of Donn Spinosa, a murder defen- dant who had been found incompetent to stand trial. After he spent three years in Oregon State Hospital (OSH), the maximum commitment period for com- petency restoration under Oregon law, he was found to have remained incompetent. The charges were dismissed without prejudice, and he was civilly com- mitted to OSH. Nearly 10 years later, when the hospital sought to release him to a community placement, the charges were refiled, and he was placed in the Washington County jail. He was again found incompetent and transferred back to OSH. There, a psychologistopined that there was no substantial probability that he would become competent. The criminal charges were dismissed, at which point the novel “magistrate hold” was used to recommit him to OSH. The de- fense attorney and district attorney on the case agreed to the use of this order. A retired judge who had worked as special master to OSH filed ethics complaints against the magis- trate and both attorneys, asserting that they had acted unethically in committing the patient to OSH under a magistrate hold, which, according to the retired judge, is not supported by Oregon law. Following the complaints, the Oregon State Bar opened an in- vestigation and eventually pursued charges of ethics violations against both the defense attorney and the Washington County district attorney. These charges were ultimately dropped. In dismissing the ethics complaints, the Oregon Bar opined that the two at- torneys had not attempted to circumvent existing civil commitment laws, but rather to initiate a civil commitment. 2 TheSpinosacase is a compelling reminder of the dilemma posed by permanently incompetent defen- dants who are alleged to have committed serious crimes in the era after the landmark U.S. Supreme Dr. Simpson is Clinical Associate Professor, Department of Psychi- atry, Keck School of Medicine, University of Southern California, Los Angeles, California. Address correspondence to: Joseph R. Simpson, MD, PhD, PO Box 818, Hermosa Beach, CA 90254. E-mail: [email protected] Disclosures of financial or other potential conflicts of interest: None. 171 Volume 44, Number 2, 2016 REGULAR ARTICLE Court decision inJackson v. Indiana. 3Jacksonholds that incompetency to stand trial is not, in and of itself, sufficient to justify civil commitment once it has been determined that there is no substantial probability of restoration to competency. Given the differences between the criteria for incompetence to stand trial and the criteria for civil commitment, some incompetent, unrestorable defendants will not meet traditional civil commitment criteria and would therefore seem eligible for release from jail or hospital confinement. When the alleged crimes are misdemeanors or less serious felonies, their release may not be a cause for great concern. However, if the charge is serious, such as murder, attempted murder, and the like, the prospect of release raises a significant question of public safety. The California state legislature addressed the problem of permanently incompetent defendants charged with violent crimes in the immediate after- math of theJacksondecision. By creating a new route to civil commitment, the state plugged the gap re- sulting from the difference between the criteria needed to be found incompetent to stand trial and those that must be met for long-term civil commit- ment. The constitutionality of the new commitment scheme was challenged and was ultimately decided by the California Supreme Court. The general topic of unrestorability of criminal defendants afterJacksonwas reviewed by Parker in 2012. 4Although the decision inJacksonspecifically prohibits continued commitment after a reasonable effort at restoration is unsuccessful, Parker found that 10 states had no statute that set a maximum time of commitment for incompetent criminal defen- dants. Thirty states had laws that specified a maxi- mum period of commitment, either as a certain number of years or as some proportion of the maxi- mum prison sentence for the crime charged (e.g., one-half, two-thirds, or 100 percent). The remaining 10 states allowed for indefinite commitment, but only as long as the defendant met civil commitment criteria. (California is counted among the latter 10; however, as will be made clear herein, this character- ization does not fully capture its statutory scheme.) Parker also pointed out how a theoretical ban on indefinite commitment may not translate intode factocompliance with theJacksonholding. He cited theJackson-respondent state of Indiana, where, until 2010, the state hospitals “always sought the renewal of the civil commitment of incompetent defendants,and it was always granted by the courts” (Ref. 4, p 172). Similarly, in an empirical study of defendants who were found to be incompetent and unrestorable in Maricopa County, Arizona, and who were referred for civil commitment, Levittet al. 5reported that the unrestorable defendants were civilly committed at a higher rate than comparison patients, despite meet- ing fewer admission criteria, and had a longer length of stay. This article describes an unusual California statute addressing the long-term involuntary commitment of incompetent, unrestorable defendants facing seri- ous felony charges. These defendants are eligible for a one-year, renewable civil commitment, even if they do not meet the traditional standard of grave disabil- ity, the standard that must be proven in California for a one-year civil commitment outside of the crim- inal justice system. Some readers may find this com- mitment scheme surprising and perhaps even dis- turbing from an ethics standpoint. Several characteristics of this type of commitment are remarkable, setting it apart from most other civil commitment laws and raising questions of ethics and fairness. Unlike civil commitment after a finding of not guilty by reason of insanity, the statute does not require proof beyond a reasonable doubt that the crime charged was committed by the patient. An indictment or information is sufficient; not even a preliminary hearing is required. The question of in- ability to care for oneself because of a mental disor- der, which must be established for most other types of long-term civil commitment, is not relevant, nor are questions of amenability to or availability of treat- ment. As written, the law does not even require the state to establish that the patient remains dangerous, other than by the implication of the original, un- proven criminal charge. Long-term deprivation of liberty on such grounds is likely to give some (per- haps many) forensic mental health professionals pause. California’s law providing for the civil commit- ment of permanently incompetent criminal defen- dants requires only three facts to be established: that the defendant is currently charged with an enumer- ated violent felony, is incompetent to stand trial, and cannot be restored to competency. These latter two facts are established using the preponderance-of- evidence standard of proof. In most other long-term commitment proceedings in most U.S. jurisdictions, either the clear-and-convincing-evidence or the Permanent Incompetence to Stand Trial 172The Journal of the American Academy of Psychiatry and the Law beyond-a-reasonable-doubt standard of proof is re- quired. As will be seen, the lack of a requirement for a showing of ongoing dangerousness was held to be a fatal procedural flaw, but with this adjustment made by case law, the commitment law has now been used for more than 30 years. Plugging the Gap California passed the groundbreaking Lanterman- Petris-Short (LPS) Act 6in 1967. Under this statu- tory scheme, long-term civil commitment requires the presence of grave disability, which the law de- fined as: “[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter” (Ref. 7). Individuals who meet this criterion can be civilly committed for a period of 12 months. This commitment is described by statute as a conser- vatorship for gravely disabled persons and is com- monly referred to as mental health conservatorship, LPS conservatorship, or simply conservatorship. The public guardian’s office or a private party can be ap- pointed as the conservator for the person, the estate, or both the person and the estate. A conservatorship of the person grants the conservator the power to make decisions about the conservatee’s residence, in- cluding consenting on his behalf to psychiatric hos- pitalization or placement in a locked mental health facility (such as an institution for mental disease or IMD) and consenting to the administration of psy- chotropic medications. Under the LPS Act, patients who are dangerous to themselves or others due to a mental disorder, but are not gravely disabled, can be involuntarily committed to an inpatient psychiatric hospital unit for shorter periods, but do not qualify for a one-year commit- ment unless they are gravely disabled. In the years since the passage of the LPS Act, most U.S. jurisdic- tions have eliminated long-term commitment (i.e., greater than three to six months) on grounds other than grave disability (i.e., danger to self or danger to others). 8 In the aftermath of theJacksondecision and a re- lated California Supreme Court case,In re Davis, 9 the state changed its law governing incompetency to stand trial. The maximum commitment after a find- ing of incompetency was fixed at three years or the maximum prison or jail sentence for the most serious offense charged, whichever was less. Thereafter, if a defendant was still not restored to competency, hehad either to be released or civilly committed accord- ing to the procedures set forth in the LPS Act. Marjory Winston Parker was Deputy Attorney General for California in the early 1970s. She was asked by State Assemblyman Frank Murphy to assist in drafting Assembly Bill 1529, which became law in 1974. In a 1975 law review article, 10 Ms. Parker described AB 1529 as: …acomplex attempt to integrate and resolve the conflict- ing concerns of protecting society from dangerous individ- uals who are not subject to criminal prosecution, preserving a libertarian policy regarding the indefinite commitment of mentally incompetent individuals who have not been charged with criminal conduct, and safeguarding the free- dom of incompetent criminal defendants who present no threat to the public [Ref. 10, p 485]. In explaining the dilemma that the bill was in- tended to resolve, Ms. Parker wrote: A defendant charged with an atrocious crime would be close to complete freedom if he could initially convince a jury that he was mentally incompetent to stand trial, and then at his civil commitment hearing, establish that he was capable of caring for himself, and not, therefore, gravely disabled as required for long-term civil commitment [Ref. 10, pp 488 –9]. She added in a footnote: Assemblyman Murphy was especially concerned with the problem since his district included Santa Cruz County where three mass murderers, Edmund E. Kemper III, Her- bert Mullin, and John L. Frazier, [who,] among them[,] had perpetrated 23 killings in less than a three year pe- riod…[Ref. 10, p 489, fn 36]. AB 1529 added a second category to the definition of the legal term “gravely disabled.” Now, in addition to the original group of those unable to provide their own food, clothing, and shelter because of a mental disorder, a criminal defendant who had been found incompetent to stand trial, who had a pending in- dictment or information, and who remained incom- petent at the conclusion of the three-year statutory maximum, was defined by statute as being gravely disabled, if he was charged with “having committed a felony involving death, great bodily harm, or a seri- ous threat to the physical well-being of another per- son” (Ref. 10, p 493). Such individuals were now subject to a one-year renewable civil commitment, even if they did not meet the standard criterion of being unable to provide for their own food, clothing, and shelter. This type of commitment has become commonly known as a “Murphy conservatorship,” after the author of the law. Simpson 173 Volume 44, Number 2, 2016 The new law was not without its critics. Grant Morris, law professor and, at the time, acting dean of the University of San Diego School of Law, authored a law review article that questioned the wisdom of the entire concept of LPS conservatorship, provocatively titled “Conservatorship for the‘Gravely Disabled’: California’s Nondeclaration of Nonindependence.” 11 Included in his critique is the following indictment of the Murphy law: Such expansion of the LPS conservatorship criteria is not warranted. In [Jackson] the Supreme Court held that the mere filing of criminal charges does not justify fewer pro- cedural and substantive protections against indefinite com- mitment than those generally available to nondefendants. The Court struck down as violative of the equal protection clause an Indiana statute that subjected mentally incompe- tent criminal defendants to commitment standards more lenient and release standards more stringent than those ap- plicable generally to civil commitment. California’s attempt to create a new category of civilly com- mittable patients—a category into which only mentally in- competent defendants charged with violent crimes can fit—is an obvious attempt to circumvent the requirements ofJacksonand should not be sanctioned. Proof of the com- mission of a violent felony—that is, a finding of guilt in a criminal trial—is not, without more, proof of the future dangerousness of the individual.A fortiori, proof only of probable cause to believe that the defendant committed a violent felony and an adjudication of mental incompetence to stand trial do not in themselves justify a prediction of future dangerousness and preventive detention of this pre- sumably innocent individual [Ref. 11, pp 212–3, fn 58]. Putting the Law to the Test It would not be long before the California courts mediated between the opposing viewpoints repre- sented by Ms. Parker and Mr. Morris. The case of Glenn Hofferber made its way up to the California Supreme Court and was decided in 1980 inConser- vatorship of Hofferber. 12 Mr. Hofferber was originally charged with murder in 1974. Later that year, he was found incompetent to stand trial and remanded to the state hospital. He had been on a standard LPS conservatorship, which had been terminated before the alleged crime. He was reported to have arrived at his work place on the day of the crime “in a specially tailored, 10-star- general’s uniform befitting his self-proclaimed posi- tion as Commander-in-Chief of the armed forces” (Ref. 12, p 840). It was also noted that he: . . . perceives himself as God and the President of the United States (and thus as supreme director of the FBI, the CIA, etc.). He was secret president by arrangementwith Lyndon John- son, but only Dwight Eisenhower was fully aware of his mission. He has deposited substances which will changeeverything at secret locations near the United Nations and in the Los Angeles sewer system [Ref. 12, p 840]. In 1977, after Mr. Hofferber had been confined for the statutory maximum three-year commitment for restoration of competency, the Department of Health determined that there was “no substantial likelihood he would regain mental competence in the foreseeable future” (Ref. 12, p 840), and he was re- turned to the criminal court. He was again found incompetent by a jury at a competency trial, using preponderance of the evidence as the standard of proof. In 1978, he was adjudicated to be gravely disabled and placed on a Murphy conservatorship. Hofferber appealed his civil commitment on three grounds: . . . that (1) a person charged with a violent felony and found mentally incompetent to stand trial may not be civ- illy committed for reasons and under procedures that differ from those applicable to other mentally disordered persons, (2) to establish grave disability his incompetency must be proved beyond a reasonable doubt, and (3) his conservator- ship violates the proscription of retroactive or ex post facto laws [Ref. 12, p 840]. The court’s ruling was divided, with a four-justice majority opinion, a concurring and dissenting opin- ion by two justices, and Chief Justice Rose Bird dis- senting. The majority opinion summarized Hoffer- ber’s claims: Appellant argues that the new scheme is a transparent and unsuccessful evasion ofJacksonandDavis. Despite the law’s attempt to make incompetents committable under the “customary” civil commitment law, he suggests, it still de- nies them equal protection because their incompetence bears no rational relationship to the “grave disability” pro- visions of the LPS Act.JacksonandDavis, he urges, make unproved criminal charges and a subsequent finding of in- competence insufficient grounds for any distinction, pro- cedural or substantive, from other persons subject to civil commitment. Since he has been found hopelessly incom- petent, he contends, he may now be civilly committed only under LPS Act provisions not dealing with criminal incom- petence. He also asserts that the new scheme denies due process because it allows indefinite commitment of hope- less incompetents on that ground alone, without any new showing that they are dangerous, helpless, or otherwise in need of further confinement. Therefore, he concludes, he must be released unless his confinement can be justified under laws articulating one or more of those grounds [Ref. 12, p 843]. In summarizing the state’s position, the majority opinion noted: The conservator responds that the new commitment pro- cedures do meet constitutional standards because they fol- low a determination of probable cause to believe defendant committed a violent felony….Separate treatment and in- definite confinement of such a defendant, he contends, are Permanent Incompetence to Stand Trial 174The Journal of the American Academy of Psychiatry and the Law justified on grounds of public safety because the probable criminal conduct evidences extraordinary dangerousness [Ref. 12, p 843]. The majority opinion also noted the deliberations that ultimately led to the passage of AB1529: In 1973 hearings on the Jackson-Davis problem (Assem. Select Com. on Mentally Disordered Criminal Offenders, Dec. 13–14, 1973) legislators, health professionals, and the Attorney General’s representative contended that incompe- tents charged with violent felonies warranted special treat- ment precisely because their past conduct implied future danger. Participants in the hearings also feared that many of those persons, while delusional and potentially violent if released, would “slip through the cracks” if they neither behaved violently in short-term confinement (a require- ment for renewal of 90-day “imminent threat” commit- ments under the LPS Act) nor could be proved unable to care for themselves (necessary for a traditional LPS Act “gravely disabled” conservatorship) [Ref. 12, p 846]. Although favorably disposed to the state’s argu- ment, the majority vacated Hofferber’s Murphy con- servatorship and remanded the case for further pro- ceedings. The court held that depriving an individual of his liberty requires a showing of ongoing danger- ousness. The Murphy statutory scheme did not re- quire a finding specifically addressing the potential conservatee’s current dangerousness, and so no de- termination of this was made in Hofferber’s original commitment proceeding. The court held that “. . . every judgment creating or renewing a conser- vatorship for an incompetent criminal defen- dant…must reflect written findings that, by reason of a mental disease, defect, or disorder, the person represents a substantial danger of physical harm to others” (Ref. 12, p 847). The standard of proof for establishing dangerousness was specified as beyond a reasonable doubt. The court rejected the contention that incompe- tence to stand trial must also be established beyond a reasonable doubt. “It would be anomalous if indefi- nitely he could avoid penal treatment by consecutive, preponderant judgments that he was incompetent and then, though dangerous, also avoid LPS Act con- finement as a ‘gravely disabled’ person because in- competence could not be established beyond a rea- sonable doubt” [Ref. zrefol12, pp 847– 8]. They also rejected Hofferber’sex post factoobjection on the grounds that the commitment statute is not penal. Two justices concurred in the judgment, but opined that the standard of proof for dangerousness should be preponderance of the evidence, rather than the reasonable-doubt standard specified in the ma- jority opinion. In other words, these two justicesbelieved that the decision granted too much proce- dural protection to the incompetent, unrestorable defendant. Chief Justice Rose Bird issued a strongly-worded dissent, which began: It is with considerable bewilderment that one reads today’s majority opinion. Explicit words—not to mention funda- mental premises— of a United States Supreme Court deci- sion are ignored, as if they do not exist. Firmly established methods of equal protection analysis are fleetingly alluded to and then forgotten. Plain truths that this court has here- tofore openly embraced are now somehow repealed [Ref. 12, p 852]. The Chief Justice first referred to the landmark U.S. Supreme Court decision inBaxstrom v. Her- old 13 some 14 years earlier. That decision struck down the differential treatment under New York law of a prison inmate whom the state sought to civilly commit. Under New York law at the time, civil com- mitment could be ordered by a court (i.e., a judge) for a prison inmate completing his sentence, but all other persons had the right to a jury determination. The Supreme Court found that this difference vio- lated equal protection. The Chief Justice then refer- enced the high court’sJacksondecision and the Cal- ifornia Supreme Court’sDavisdecision and opined that the Murphy statute violated equal protection according to the precedents established by these three decisions. Specifically, Chief Justice Bird identified two ways in which the Murphy scheme failed the equal protec- tion test: first, whereas others could only be civilly committed for dangerousness to receive treatment, incompetent defendants could be committed, even if there was no treatment available; second, the length of an incompetent defendant’s commitment is theo- retically indeterminate, whereas anyone else commit- ted for dangerousness could only have his commit- ment renewed if he threatened, attempted, or engaged in violence during the preceding commit- ment period. In addition to these failings, Chief Justice Bird’s dissent raised the question that this type of conserva- torship might constitute cruel and unusual punish- ment, with its potential to result in the lifelong insti- tutionalization of a person on the basis of the status of having a dangerous mental condition, where it has not been proven beyond a reasonable doubt that a violent crime was committed and the mental condi- tion is untreatable. Simpson 175 Volume 44, Number 2, 2016 AfterHofferber The California legislature did not change the lan- guage of the Murphy conservatorship statute after theHofferberdecision. Mr. Hofferber was commit- ted after a new hearing and was retained in a state forensic hospital. Presumably, the second hearing in- cluded a written determination of his present dan- gerousness. The state was never able to try him, and he remained on conservatorship (Murphy for many years, and later on a standard LPS conservatorship) until his death in a skilled nursing facility in 2007, 33 years after his alleged crime (D. Meyer, JD, personal communication, May 2014). He had one episode of freedom, however: two or three years after the su- preme court’s decision, he escaped from Metropoli- tan State Hospital in the Los Angeles suburb of Nor- walk, took a bus to downtown and traveled by bus to Las Vegas. After spending a few days at a hotel there, he went to a police station and told them he was an escaped murderer from California (D. Meyer, JD, personal communication). As the description of theSpinosacase by Rodol et al., 1and research such as that reported by Parker 4 and Levittet al. 5illustrate, the dilemma posed by permanently incompetent, arguably dangerous de- fendants such as Mr. Hofferber has not been ad- dressed in most U.S. jurisdictions. In 1986, the American Bar Association (ABA) issued a nearly 500- page document containing recommended standards for many key concerns at the interface between the fields of mental health and criminal law. 14 Standard 7-4.13 addresses the disposition of permanently in- competent defendants. It recommends that after a specified period of competency restoration efforts, a hearing should be held to determine whether the defendant is permanently incompetent. If the defen- dant is permanently incompetent, “and has been charged with a felony causing or seriously threaten- ing serious bodily harm” (Ref. 14, p 239), then a hearing on factual guilt is held, followed (assuming the defendant’s guilt is proved) by a special commit- ment proceeding akin to that for a defendant found not guilty by reason of insanity. Defendants who are not charged with felonies causing or threatening se- rious bodily harm and who are found permanently incompetent must be released or civilly committed through traditional means. Although it resembles California’s solution to some degree, the ABA standard does not referenceCalifornia’s law or theHofferberdecision. According to a commentary published alongside the article by Levittet al., the ABA proposal for the management of permanently incompetent defendants has been “long ignored” throughout the country (Ref. 15 p 363). Morris, who, as discussed above, questioned the LPS scheme generally, 11 took a more in-depth look at laws governing the disposition of permanently in- competent defendants 15 years later. He collabo- rated with forensic psychologist J. Reid Meloy, on a 96-page law review article, published in 1993. 16 The authors first reviewed the statutory responses toJack- sonin all U.S. jurisdictions and then presented an analysis of patients committed under the Murphy statute in California. They found that, in September 1992, there were 97 patients committed under the Murphy law in the state hospital system. The dura- tion of confinement ranged from less than 1 year to 12 years, with the majority (55.7%) having been confined for 4 years or less (not including the preced- ing 3 years of commitment for competency restoration). The extremely small number of patients commit- ted under the Murphy law is a reminder of the rarity of the situation in which a defendant charged with a serious felony cannot be restored to competency, even after three years of inpatient hospital treatment. It is impossible to determine how many of these pa- tients may also have met criteria for traditional civil commitment if the option of the Murphy conserva- torship were not available, but this arguably could make the pool of defendants who would have to be released but for the existence of the Murphy law even smaller. The sparing use of this type of commitment has continued for the two decades since the Morris and Meloy review. 16 Despite the intervening growth of California’s population and of its state hospital population, the number of patients confined under Murphy is actually smaller now, with 69 patients residing in the state hospitals in June 2014. 17 The total capacity of California’s five forensic hospitals is approximately 6,000 patients. 18 It is not clear why the number of patients on Mur- phy conservatorship has declined. If any clinical, as opposed to institutional (e.g., the practices of foren- sic hospital staff), factors have contributed to the decrease, one such factor could be the advent of atyp- ical antipsychotic medications, beginning with the introduction of clozapine in 1990, which may have allowed for a higher percentage of these severely ill Permanent Incompetence to Stand Trial 176The Journal of the American Academy of Psychiatry and the Law patients to be restored to competency; but in the absence of any recent systematic studies of this pop- ulation, this is mere speculation. Oregon’s Response: A (Slightly) Different Approach TheSpinosacase and another high-profile case in Oregon in 2011 involving the murder of a police officer led to the passage of Oregon Senate Bill 421 as §426.701 in 2013. 19,20 The new law creates a two-year renewable commitment for individuals who have a mental disorder that is resistant to treat- ment, who are currently exhibiting symptoms, and who are extremely dangerous. Extreme dangerous- ness is defined by having been found to have com- mitted, as a result of a treatment-resistant mental disorder, one of several listed violent or criminal sex- ual acts. Clear and convincing evidence is the stan- dard of proof. A criminal conviction is not a requirement. Unlike the Murphy conservatorship, the language of Oregon’s new commitment law for the extremely dangerous is not specific to criminal defendants in general or to defendants who have been found in- competent or unrestorable in particular. However, two cases involving murder defendants who were in- competent for an extended period were the impetus for the law, and, given the entry requirement of a serious violent or criminal sexual act, it may be that many or even most patients committed under the new law will in fact be criminal defendants, indeed incompetent defendants. The law’s requirement of a violent crime or sex offense sets a high threshold for commitment. Situ- ations where a person, who can be shown to have committed a crime of violence, does not have any charges pending are presumably quite rare. On the other hand, defendants who are charged and are ini- tially competent or are restored to competency will be either sentenced to a term of incarceration or found not guilty by reason of insanity; in either case, they would not be committed under this law. One scenario other than an incompetent criminal defen- dant would be someone who was previously con- victed and sentenced to prison or found not guilty by reason of insanity, who is off parole or has been un- conditionally released from supervision. If such a person, who presumably had improved clinically, were to relapse such that he again exhibited severe symptoms and presented a serious danger to others,he could theoretically be subject to commitment un- der Oregon’s statute, even without committing a new violent act. Conclusion Thanks to the Murphy conservatorship, Califor- nia courts do not face the dilemma of the type that led to ethics charges being filed against two attorneys and a magistrate in Oregon who devised an unusual method of coping with an unrestorable defendant charged with murder. Some may find it surprising that California, which is often perceived as highly patient-rights oriented (the LPS Act revolutionized civil commitment procedures and has been emulated by many states) has this type of law. However, the California legislature and courts have not shied away from passing and upholding relatively restrictive laws regarding criminally convicted persons with mental illness, including a sexually violent predator law 21 similar to those of nearly half the states and a law allowing for the civil commitment of prison inmates with severe mental disorders at the time of pa- role, 22,23 a rarity in the United States. Although some forensic mental health profession- als may find the Murphy solution ethically objec- tionable for reasons described earlier, a layperson, hearing that there is a controversy over what to do with someone who is so impaired by mental illness that he cannot be put on trial for a violent crime, yet who is at the same time able to provide for his own food, clothing, and shelter and therefore is not eligi- ble for traditional long-term involuntary commit- ment, would probably be incredulous at the idea that unconditional, unsupervised release would be con- sidered to be one of the available choices. This atti- tude may have more to do with the imperfect fit between legal definitions and categories on the one hand and the realities of mental illness on the other, than with any inclination on the part of forensic mental health professionals to release potentially dangerous people. Many professionals have written about the difficulty inherent in attempts at predict- ing future violence. We do know that among many relatively poor predictors of future violence, the best predictor is a history of past violence. Although an incompetent defendant charged with a crime of seri- ous violence has not been proven through the mech- anism of a trial to have perpetrated a violent act, as a matter of probability, it could be argued that the defendant is more likely to commit violence in the Simpson 177 Volume 44, Number 2, 2016 future than someone who has never been charged with a violent crime, all other things being equal. Faced with the extremely difficult choice of either releasing a person accused of murder or some other serious violent felony or keeping him confined de- spite the inability to prosecute him, a legal device such as the Murphy conservatorship could be considered the lesser of two evils (i.e., hospitalizing someone who might not be dangerous versus releas- ing someone who might be). As with sexually violent predator laws, this appeal to public protection and the police powers of the state may go a long way toward explaining why the Murphy law was passed in the first place and why no court has seen fit to overturn it in the 40 years since its passage. The small number of patients committed under Murphy may provide an explanation for why few other jurisdictions have a specific law to deal with permanently incompetent defendants charged with serious crimes. California is the most populous state and currently has very few patients confined under the Murphy statute, indicating that the circum- stances where it is needed are rare. Indeed, some states with lower populations may never have had a case of this type. The Murphy statute was passed at a time of increased attention to mental illness and crime. As mentioned above, at the time the law was created, nearly two dozen people had been murdered by three perpetrators in a single county over a three- year period. This was a few years after the LPS Act had drastically changed civil commitment laws in the state and shortly afterJacksonprohibited the indefi- nite commitment of incompetent criminal defen- dants. Concern about violent patients with mental illness falling through loopholes in the legal system and being released without supervision was presum- ably high at that time. Similar factors in Oregon led to that state’s recent legislative response. It seems very likely that most patients who cannot be restored to trial competency after extended efforts including enforced medication in a hospital setting will remain sufficiently impaired that they will meet the traditional civil commitment criterion of being gravely disabled and can therefore be placed in a hos- pital setting without invoking their status as an in- competent criminal defendant as the justification for confinement. Furthermore, judges and juries asked to determine the grave disability of an incompetent defendant may very well be inclined to interpret the “grave disability” term of art in an expansive fashion,relative to patients who do not have unresolved seri- ous criminal charges. That such a scenario occurs is suggested by the studies by Parker 4and Levittet al. 5 Nevertheless, it is clear that the match between incompetency to stand trial and grave disability is not perfect, and theSpinosacase illustrates how the legal system can be thrown into disarray when there is no means to address the problem. California and now Oregon provide examples of U.S. jurisdictions that address the public policy dilemma posed by an unre- storable criminal defendant charged with a serious violent crime who does not meet traditional civil commitment criteria, without violating the letter of Jackson. The California Supreme Court’s 1980 deci- sion inHofferber, requiring a finding of present dan- gerousness, arguably brings the Murphy statute closer to compliance with the spirit ofJacksonas well, in that the patient is not committed solely on the basis of incompetency to stand trial. The question of predicting future dangerousness remains an ethically challenging aspect of the Mur- phy approach, as well as Oregon’s §426.701. There is a temptation to argue that the existence of the crim- inal charge constitutes sufficient evidence of the pa- tient’s dangerousness; as we have seen, the language of the Murphy statute does not require any addi- tional showing of dangerousness. Thus, it contains an element of the logical fallacy of arguing from the conclusion: because the defendant is charged with a crime, he is presumed to be dangerous and in need of confinement. The court inHofferbermitigated this to some degree, increasing the burden on the state by mandating additional evidence of ongoing danger- ousness, independent of the original criminal charge. Oregon’s new law, while not exclusive to criminal defendants, can and most likely will be used in the context of incompetence to stand trial. It requires some evidence indicating that the patient has been responsible for a serious criminal act, but does not require conviction. Like Murphy commitments post-Hofferber, it also requires a showing of present dangerousness. But what if the defendant did not actually commit the crime charged? The Murphy law has no mechanism to establish factual guilt or inno- cence, such as a trial on the facts as described in the ABA proposal 14 discussed above. Similarly, if Ore- gon’s commitment law for the extremely dangerous is applied in the case of an incompetent defendant, there will be no criminal conviction. Thus, neither law is immune from the risk of a person with mental Permanent Incompetence to Stand Trial 178The Journal of the American Academy of Psychiatry and the Law illness who is factually innocent of a charged crime being confined in a mental hospital indefinitely, as incompetence to stand trial precludes being acquitted. Predicting future dangerousness is difficult to do with any reasonable degree of accuracy, 24,25 perhaps especially when attempting to predict rare events such as serious physical assaults and homicides. Given the prejudicial weight that finders of fact (as well as forensic evaluators) might give to serious criminal charges, a mechanism such as a trial on the facts would guard against the risk of indefinitely con- fining an innocent defendant who cannot be restored to competency. Given that nearly 30 years later no U.S. jurisdiction has adopted any part of the ABA’s recommendations in this area, 15 that risk is likely to remain. The incompetent, unrestorable defendant charged with a serious violent crime poses a significant prob- lem for the criminal justice system and the forensic mental health system, especially when the situation cannot be resolved, at least temporarily, through a civil commitment on grounds of grave disability be- cause the defendant does not satisfy that criterion. The Murphy conservatorship is a legislative attempt to solve the dilemma posed by this type of case. In 2013, Oregon passed a new law that, although it did not specifically address incompetent criminal defen- dants, was, like the Murphy law, drafted in response to that situation. These types of laws raise their own ethics-related concerns, including the difficulty of making accurate predictions about future dangerous- ness and the possibility of committing a defendant who did not in fact commit the charged crime. It is hoped that this review will stimulate research in this area and raise awareness regarding the need for other jurisdictions to devise a management strategy for de- fendants such as Hofferber and Spinosa. References 1. Rodol L, Epson MF, Bloom JD: Limitations of constitutional protections inJackson v. Indianapertaining to charges with no statute of limitations. J Am Acad Psychiatry Law 41:114 –20, 20132. Neil M: Bar drops complaint against DA and defense lawyer over ‘undeniably invalid’ court order. American Bar Association Jour- nal, September 24, 2013. Available at http://www.abajournal. com/news/article/bar_drops_complaint_against_lawyers_over_ unusual_mental_illness_magistrate_. Accessed November 13, 2014 3. Jackson v. Indiana, 406 U.S. 715 (1972) 4. Parker GF: The quandary of unrestorability. J Am Acad Psychia- try Law 40:171– 6, 2012 5. Levitt GA, Vora I, Tyler K,et al: Civil commitment outcomes of incompetent defendants. J Am Acad Psychiatry Law 38:349 –58, 2010 6. Cal. Welf. & Inst. Code §§5000et seq(1967) 7. Calif. Welf. & Inst. Code §5008(h)-(1) (2013) 8. Bloom JD: Thirty-five years of working with civil commitment statutes. J Am Acad Psychiatry Law 32:430 –9, 2004 9. In re Davis, 505 P.2d 1018 (Cal. 1973) 10. Parker MW: California’s new scheme for the commitment of individuals found incompetent to stand trial. Pac L J 6(2):484, 1975 11. Morris GH: Conservatorship for the “gravely disabled”: Califor- nia’s nondeclaration of nonindependence. San Diego L Rev 15: 201, 1978 12. Conservatorship of Hofferber, 616 P.2d 836 (Cal. 1980) 13. Baxstrom v. Herold, 383 U.S. 107 (1966) 14. American Bar Association: Criminal Justice Mental Health Stan- dards, Part IV: Competence to Stand Trial, 7-4.13. Disposition of permanently incompetent defendants. Washington, DC: ABA, 1986, pp 239 –52 15. Hoge SK: Commentary: Resistance toJackson v. Indiana— civil commitment of defendants who cannot be restored to compe- tence. J Am Acad Psychiatry Law 38:359 – 64, 2010 16. Morris GH, Meloy JR: Out of mind? Out of sight: the uncivil commitment of permanently incompetent criminal defendants. U C Davis L Rev 27:1, 1993 17. California Dept. of State Hospitals, Response to Public Records Act Request 14-114, July 1, 2014 18. California Department of State Hospitals. Available at http:// www.dsh.ca.gov/hospitals/. Accessed November 13, 2014 19. Bloom JD: Recent changes in Oregon Mental Health Law: mental health law at the boundary of civil commitment and the criminal justice system. Grand Rounds Presentation. Available at http:// www.ohsu.edu/xd/education/schools/school-of-medicine/ departments/clinical-departments/psychiatry/grand-rounds/ upload/Dr-Bloom_GRNOV-19_CST-2013.pdf/. Accessed No- vember 13, 2014 20. Or. Rev. Stat. §426.701 (2013) 21. Cal. Welf. & Inst. Code §§ 6600et seq(2006) 22. Cal. Penal Code §§2962et seq(2012) 23. Simpson JR, Farhadi P: California’s mentally disordered offender law. Am Acad Psychiatry Law Newsletter 37:23:30, 2012 24. Miller SL, Brodsky SL: Risky business: addressing the conse- quences of predicting violence. J Am Acad Psychiatry Law 39: 396 – 401, 2011 25. McDermott BE, Scott CL, Busse D,et al: The conditional release of insanity acquittees: three decades of decision-making. J Am Acad Psychiatry Law 36:329 –36, 2008 Simpson 179 Volume 44, Number 2, 2016
After completing the readings for this module, review the sentencing mitigation report completed for Alexander Blair (Alexander Blair Defense Sentencing Memo.pdf). In 2015, Mr. Blair (then 29 years ol
Incompetent to Stand Trial, Not Restorable, and Dangerous Joseph D. Bloom, MD, and Scott E. Kirkorsky, MD This article focuses on the preferred disposition for an individual charged with a serious crime against another person, adjudicated incompetent to stand trial and not restorable to competence, whose original criminal charges are dismissed without prejudice, and who is regarded by the state as dangerous to the general public. Three current models used today in California, Oregon, and Ohio are described. All three rely on modifications of various aspects of civil commitment law. We then propose a fourth model based on a modified version of the 1989 American Bar Association (ABA) Criminal Justice Mental Health Standards, in which individuals who are found incompetent to stand trial and not restorable to competence and are considered dangerous would be committed under the same special procedures governing the management and treatment of insanity acquittees. J Am Acad Psychiatry Law 48(2) online, 2020. DOI:10.29158/JAAPL.003920-20 The late 1960s and early 1970s were times of dra- matic changes in many aspects of civil commitment law. 1-3 One significant focus was the relationship of civil commitment to the criminal justice system. The U.S. Supreme Court decision in Baxstrom v. Herold addressed the question of psychiatric hospitalization of mentally ill prisoners at the end of their prison terms. 4Johnnie Baxstrom was a prisoner who was “declared mentally ill” and transferred during his prison term to Dannemora State Hospital for the Criminally Insane under the supervision of the New York Department of Corrections. After his prison term ended, the state determined, at a perfunctory hearing, that Mr. Baxstrom remained dangerous and ordered him to remain at Dannemora without the benefit of the full civil commitment hearing available to other citizens not coming from prison. Later, the release of Mr. Baxstrom and of others in similar sit- uations led to Steadman’s landmark research on the long-term prediction of dangerousness, published in 1973 in the first year of publication of the Journal of the American Academy of Psychiatry and the Law. 5 Baxstrom logically led to the 1972 Supreme Court case of Jackson v. Indiana, 6which examined the ques- tion of how long individuals charged with crimes could be held in pretrial status as incompetent to stand trial (IST) and what was to happen to them after a verdict of IST and not restorable (IST/NR) was rendered: We hold . . . that a person charged by a State with a criminal offense who is committed solely on account of his incapac- ity to proceed to trial cannot be held more than a reasonable period of time necessary to determine whether there is sub- stantial probability that he will attain capacity in the fore- seeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceedings that would be required to com- mit indefinitely any other citizen, or release the defendant [Ref. 6, p 739]. The Court was reluctant to define either a “rea- sonable period of time” or the “substantial probabil- ity” that the person would be found competent in the “foreseeable future” This reluctance to provide spe- cific time limits has had important ramifications for later implementation of this decision. Other elements of the Jacksondecision are impor- tant to note. The Court applied the “ Baxstromprin- ciple” of equal protection to insanity acquittal by citing Bolton v. Harris 7and to “commitment in lieu of sen- tence following conviction of a sex offender” (Ref. 6, Published online February 12, 2020. Dr. Bloom is Clinical Professor, Department of Psychiatry, University of Arizona College of Medicine, Phoenix, AZ. Dr. Kirkorsky is Assis- tant Clinical Professor, Department of Psychiatry, Banner University Hospital, Phoenix, AZ. Address correspondence to: Joseph D. Bloom, MD, Department of Psychiatry, University of Arizona College of Medicine–Phoenix, 550 E. Van Buren, Building 3, Phoenix, AZ 85004. E-mail: [email protected] Disclosures of financial or other potential conflicts of interest: None. 1 Volume 48, Number 2, 2020 ANALYSIS AND COMMENTARY Copyright 2020 by American Academy of Psychiatry and the Law. p 724 –5) pursuant to the Wisconsin Sex Crimes Act in the case ofHumphrey v. Cady. 8 The Court also addressed the question of the “dis- position of charges” against Mr. Jackson, discussing the possible use of an involuntary insanity defense for the final disposition of IST/NR defendants by citing that other “courts and commentators have noted the desirability of permitting some proceedings to go for- ward despite the defendant’s incompetency” (Ref. 6, p 740). This was followed by a reference to the Model Penal Code, which “would permit an incom- petent accused’s attorney to contest any issue ‘suscep- tible of fair determination prior to trial and without the personal participation of the defendant’” (Ref. 6, p 740). Defendants Found IST/NR If the process outlined in Jacksonwere followed in every case, after a “reasonable period of time,” all individuals found IST/NR would have the original charges dropped and would be released, with or with- out prejudice, or civilly committed under the same civil commitment rules that apply to all citizens of the state. If the charges were dismissed without pre- judice, the charge could be reinstated at the discre- tion of prosecutors at any time within the statute of limitations for the crime charged. In many states, however, this disposition does not occur in a uniform manner. In 2012, Parker 9reviewed state statutes regarding the evaluation, possible restoration, and final dispo- sition of defendants found IST. He found a high degree of variability among states in their approach and the need for empirical research to help legisla- tures and courts develop reasonable limits to incom- petency to stand trial, including attempts at restora- tion. Kaufman et al. 10 also found significant heterogeneity in the approaches taken by states in response to Jackson. Morris and Parker, in a study of the time necessary to restore competency, reported that more than 80 percent of 1,475 IST defendants were restored within one year, and more than 70 percent were re- stored in the first six months. 11 In a subsequent study, Morris and DeYoung 12 followed 81 IST de – fendants who remained unrestored after an initial six months of hospitalization. They concluded that “most successful restoration occurred during the ini- tial years of restoration efforts. Restoration success plateaued during two to three years of hospitalization and became rare after three years” [Ref. 12, p 87]. As part of a comprehensive examination of foren- sic mental health services provided by states, Fitch 13 also noted that there was little consistency among states’ approaches to adapting a reasonable time for competency restoration. The disposition of defen- dants adjudicated IST/NR was also inconsistent, with 49 percent of responding states reporting release or civil commitment, 24 percent reporting release or civil commitment and ongoing criminal court in- volvement, and a minority of states continuing treat- ment or applying unique commitment criteria to this population. 13 Notwithstanding that many states have developed statutes and informal ways of prolonging the period allotted to restore an incompetent defendant, there comes a time when the determination of IST/NR cannot be avoided. The idea that a person found IST/NR can be civilly committed indefinitely is less feasible today than it was in previous years. As de- scribed by Parker 9and illustrated in this article, some state legislatures, courts, and prosecutors believe that modification of civil commitment laws is necessary to provide societal protection from individuals with mental illness who are presumed to be dangerous and who are adjudicated IST/NR. The following sections describe three such modifications of state civil com- mitment statutes from California, Oregon, and Ohio. These states were chosen because of our per- sonal experience with these states and to illustrate situations that may exist in more than these three states. These modifications are presented to empha- size different aspects of traditional civil commitment law, each with the common element of a judicial determination that the individual in question is cur- rently dangerous to others. California’s Murphy Conservatorship Simpson 14 described in detail the modification of California’s civil commitment statute that allows for the long-term commitment of IST/NR individuals. First, consistent with Jackson, 6the Supreme Court of California held in In re Davis15 that if “there exists no reasonable likelihood that the person will recover his competence to stand trial in the foreseeable future, the court should either order the person released from confinement or initiate appropriate alternative commitment proceedings under the Lanterman- Petris-Short (LPS) Act” (Ref. 15, p 1025). California IST/NR and Dangerous 2 The Journal of the American Academy of Psychiatry and the Law initially limited the maximum duration of commit- ment for the purpose of competency restoration to “three years from the date of commitment or a period of commitment equal to the maximum term of im- prisonment.” 16 In 2018, the maximum commitment for competency restoration was reduced to two years. 17 Following Davis, Judge Harry Brauer wrote to his local legislators Donald Grunsky and Frank Mur- phy, Jr., stating: [A] number of judges joined me in expressing our despair and bewilderment at what can now be done with the killer who is insane . . . . Some provision must be made for the indefinite, high-security, civil confinement of persons who are dangerous and insane, and I do not mean for 72 hours, 14 days, or even one year under guardianship, which seems to be the maximum confinement under [the] LPS Act [Ref. 18, p 1]. In his letter, Judge Brauer mentioned his concern that a Santa Cruz county serial killer, Herbert Mul- lin, 19 may not stand trial due to incompetence. After receiving the letter, Murphy 20 had the Leg – islative Counsel draft Assembly Bill 1529, which modified the existing statutory definition of gravely disabled to include two separate definitions for gravely disabled. The first, which is the traditional definition of a gravely disabled person, focused on individuals who are unable to care for their basic personal needs. The second, as later codified into statute, focused on individuals found incompetent to stand trial for charges “involving death, great bodily harm, or a serious threat to the physical well-being of another person” (Ref. 21, § h,2). The Murphy Con- servatorship bill, signed into law by Governor Rea- gan in 1974, 22 effectively provided a mechanism to acquire long-term civil commitment for individuals found IST/NR not otherwise eligible for commit- ment on the traditional gravely disabled criteria of individuals found IST/NR under the original LPS Act. Simpson describes this new legislation as “plug- [ging] the gap resulting from the difference between the criteria needed to be found incompetent to stand trial and those that must be met for long-term civil commitment” (Ref. 14, p 172). After the initial one-year term expires, the LPS Act did not require a finding of ongoing dangerousness for renewal of a Murphy conservatorship. 23 This was changed in the California Supreme Court case of Conservatorship of Hofferber, 24 in which Justice Newman opined, “We therefore hold that every judgment creating or renewing a conservatorship for an incompetent criminal . . . must reflect written findings that, by reason of a mental disease, defect, or disorder, the person represents a substantial danger of physical harm to others” (Ref. 24, p 847). This requirement for current dangerousness was thus added to the Murphy conservatorship statute. 21 The Murphy conservatorship survives today in California with approximately 100 individuals com- mitted to the state hospital under this status as of May 2019 (Warburton K, personal communication, May 2019). This number has increased from the 69 patients reported by Simpson in 2014. 14 Oregon’s New Dangerousness Standard In 1977, the Oregon legislature created the Psy- chiatric Security Review Board (PSRB) to manage the hospital and community course of the state’s in- sanity acquittees. 25 The legislature extended the PSRB’s jurisdiction to include juvenile insanity ac- quittees in 2005, and in 2010 the legislature made the Board responsible for Oregon’s Gun Relief Program. 26,27 In 2013, the legislature further expanded the re- sponsibilities of the PSRB to include a section of the state’s civil commitment statute designed to monitor a newly defined population of those found IST/NR and civilly committed as “extremely dangerous” per- sons. 28 The impetus for this change came from two cases of individuals with mental illness who had been found IST/NR. 29 One was D.S., who was hospital – ized following a homicide and scheduled for release after 10 years in the state hospital. 30,31 Once re – leased, he was immediately rearrested, jailed for months, eventually rehospitalized, and again de- clared IST/NR and civilly committed. The second case involved a middle-aged woman who shot an Oregon police officer during a traffic stop and was subsequently adjudicated IST and eventually found IST/NR. 14 Because of these prominent cases, the state legislature added a new section to the civil com- mitment statute; this new section stands parallel to the regular civil commitment procedures in Oregon but includes unique features. 32 Briefly, commitment to the PSRB as an “ex- tremely dangerous person” can be initiated by a dis- trict attorney alleging that the individual is an adult who “[b]ecause of a mental disorder, presents a serious danger to the safety of other persons” and, “[u]nless committed, will continue to represent an Bloom and Kirkorsky 3 Volume 48, Number 2, 2020 extreme risk to the safety of other persons in the foreseeable future” (Ref. 28, § 1,a).After commitment to the PSRB, the statutes, rules, and procedures are similar to those governing commitment of insanity acquittees. 26 The court places the individual under the jurisdiction of the PSRB for 24 months with potential renewals until the statute of limitations for the original crime has run. 33 Additionally, the PSRB holds six-month hear – ings to determine the appropriate placement of the individual (i.e., hospitalization or conditional re- lease). At the end of any 24-month period of com- mitment, the PSRB must discharge any person back to the court if the person is found no longer ex- tremely dangerous. The district attorney is notified of the discharge and may order a competency exam- ination to determine whether the person remains IST/NR or is now competent to stand trial. If com- petent, the individual may then be tried on the orig- inal charge. If the PSRB terminates its jurisdiction and the person remains IST/NR, the state must then either pursue regular civil commitment or allow for the charges to be dismissed without prejudice. 34,35 On May 13, 2019, the PSRB was responsible for the supervision of 16 “extremely dangerous” persons (Bort A, personal communication, May 2019). Ohio’s Modified Sex Offender Commitment In Kansas v. Hendricks, 36 the United States Su – preme Court formed the basic template for Ohio’s approach for individuals found IST/NR and danger- ous to others. Leroy Hendricks had an undisputed diagnosis of pedophilia and was viewed as highly likely to reoffend. “In 1994, Kansas enacted the Sex- ually Violent Predator Act, which established proce- dures for the civil commitment of persons who due to a ‘mental abnormality’ or a ‘personality disorder’ are likely to engage in ‘predatory acts of sexual vio- lence’” (Ref. 36, p 350). A key component of the Court’s decision was classifying this new type of commitment in Kansas law as a permissible civil pro- cedure as opposed to a further criminal procedure that was added at the end of a prison sentence. Ohio applied this distinction to develop procedures for holding individuals found IST/NR and dangerous. Once committed, these individuals were kept under the jurisdiction of the court that originally heard the criminal case rather than transferring the case to the jurisdiction of the probate courts that would ordinar- ily handle civil commitment. The Ohio statutory scheme for the disposition of those adjudicated IST/NR and dangerous closely parallels the statutes for Ohio’s post–insanity defense procedures. Briefly, if after up to one year, an indi- vidual charged with a serious crime (e.g., aggravated murder, murder, first- or second-degree violent felo- nies, or conspiracies related to these crimes) 37 is found IST/NR, the trial court judge may either refer the individual to the probate court for consideration of civil commitment or: . . . on the motion of the prosecutor or on its own motion, the court may retain jurisdiction over the defendant if at a hearing the court finds both of the following by clear and convincing evidence: (a) the defendant committed the of- fense with which the defendant is charged [, and] (b) the defendant is a person with mental illness subject to court order or a person with an intellectual disability subject to institutionalization by court order. 38 The statutes define procedures for the court to maintain jurisdiction, for the hospitalization or con- ditional release, and the possible release of these individuals when they reach the maximum sen- tence possible had they been tried for the original charge. If at any point in this time period there is reason to believe the defendant is competent, the prosecutor, the defense counsel, or a designee of the Department of Mental Health may request a hearing on competency. 39 In 2008, the Court of Appeals for Ohio’s Second District found in a divided decision in State v. Wil- liams that the Ohio statute was unconstitutional on three grounds. 40 First, the majority found that the statute was not civil in nature but more closely re- sembled a criminal statute without the necessary pro- cedural safeguards. Second, the appeals court found that the statute violated the defendant’s right to equal protection. Finally, the length of criminal court su- pervision of a possible maximum term was excessive in relation to the goals of civil commitment. The Ohio Supreme Court reviewed the case in 2010 and reversed the Appeals Court in all aspects of the deci- sion. 41 Choi and Weiss 42 focused on a discussion of the Ohio Supreme Court’s determination that the statute was not criminal in nature and fit into the general requirements of a civil statute. As of January 31, 2019, there were a total of 249 people found IST/NR who remained under the jurisdiction of trial courts; 164 of them were in state hospitals, and 85 were on conditional release (Stankowski J, personal communication, May 2019). The state of Arizona is considering the adop- IST/NR and Dangerous 4 The Journal of the American Academy of Psychiatry and the Law tion of a model like that of Ohio for the disposition of individuals found IST/NR and considered dangerous. 43 ABA Special ProceduresIn 2010, Levitt et al. 44 reported on a group of individuals found IST/NR in Arizona who were civ- illy committed to a psychiatric hospital immediately following their adjudication as IST/NR. When com- pared with individuals committed pursuant to the regular civil commitment process, individuals found IST/NR were more frequently medicated and had a longer hospital course. In a commentary to that article, Hoge 45 reviewed the inconsistent implementation of Jacksonamong states and the changes in civil commitment that have come about recently with the narrowing definitions of both dangerousness and grave disability. 46 Hoge concluded his commentary with an appeal to “re- form our laws on the management of unrestorable, incompetent defendants and to implement sensible policies to protect the public” (Ref. 45, p 363). He recommended considering the 1986 and 1989 American Bar Association Criminal Justice Mental Health Standards special procedures to manage IST/NR individuals charged with a serious crime and viewed as dangerous. 47 The ABA special procedures included an initial adversarial hearing, during which the prosecution had to prove the factual guilt of the defendant beyond a reasonable doubt. Per Standard 7-4.13, if the finder of fact determined that the pros- ecution met its burden of proof and the individual was found guilty, then the court could commit these individuals using the same special commitment pro- cedures that followed an acquittal by reason of insan- ity. 47 From that point forward, individuals originally found IST/NR and insanity acquittees would be handled in the same manner. 47 The ABA revised its Standards in 2016 and re- versed course regarding the procedures for individ- uals adjudicated IST/NR. 48,49 The new standards have eliminated the earlier proposal to merge the special procedures for insanity acquittees and IST/NR individuals and now recommend only civil commitment or release for those found IST/NR with one modification: “If the defendant is found unre- storable, then the defendant should be released from any detention or commitment for treatment to attain or restore competence. If the defendant meets the criteria for involuntary civil commitment, the court may order such commitment and may direct that the initial commitment take place in a forensic facility” (Ref. 46, Standard 7-4.14(c)). Initial commitment to a forensic facility is the only apparent recognition that certain IST/NR individuals may require special treatment procedures. Discussion Prior to finding a defendant IST/NR, states have produced heterogeneous interpretations of “reason- able period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future” (Ref. 6, p 716). Parker 9and Morris and DeYoung 12 have helped define how to translate this concept into prac- tice. From clinical experience and from the empirical literature, this should not be too difficult to accom- plish, but this is not just an empiric question. There are political and practical motives in the states for keeping individuals who are charged with serious crimes in some form of surveillance for as long as possible before a determination of IST/NR and po- tential release. This situation exists in part because regular civil commitment is no longer viewed as a sufficient out- come. Civil commitment criteria have narrowed, and the number of available psychiatric beds has de- creased. 45,46,50 Regardless of the often legitimate op – position to special procedures for special popula- tions, legislators, prosecutors, and many in the general public are unwilling to view regular civil commitment as the answer for managing special populations, including insanity acquittees, sex of- fenders, and those found IST/NR. The authors accept that special procedures are necessary in contemporary society, especially when considering populations that are viewed as danger- ous. The IST/NR population, however, is in the least advantageous position when compared with other individuals enmeshed in the criminal justice system. Insanity acquittees and sex offenders have already been tried and are entered into programs that require them to navigate special commitment procedures and barriers to release. Release is possible, however circuitous it may be. In contrast, for those found IST/NR, recovery may lead straight back into the criminal justice system. The 2016 ABA Criminal Justice Standards on Mental Health present a reasonable model for the management of insanity acquittees, including: limit- Bloom and Kirkorsky 5 Volume 48, Number 2, 2020 ing state jurisdiction to the possible sentence for the original criminal charge; providing humane and in- formed treatment programs and well-trained person- nel; making it increasingly difficult over time to keep individuals in forensic hospitals; and conditional re- lease programming and involvement to the extent possible in community life. We disagree, however, with ABA’s elimination of the earlier use of special procedures for the disposition of IST/NR individuals in its revised standards. 47 With the goal of restoring the earlier ABA position with certain modifications, we support the adoption of similar special procedures for management and treatment of both insanity acquittees and those found IST/NR. These two groups are mirror images of each other. Both groups are charged with serious crimes, both groups contain individuals with serious mental illness, and both are considered dangerous. The difference is that IST/NR individuals are pretrial while insanity acquittees are posttrial, having already had their day in court. Based on these similarities and differences we propose five revisions to the ABA position. First, states considering the use of a special proce- dure for IST/NR individuals should adopt the 2016 ABA standard for the special procedure for insanity acquittees and apply them as well to those found IST/NR as was done in the 1986 and 1989 ABA standards. 48 Second, these special standards should apply to both insanity acquittees and those found IST/NR where the original criminal charge involves death or threat of serious bodily harm to others (Ref. 48, Standard 7-7.4) as established in a full adversarial hearing to determine beyond a reasonable doubt whether the individual committed the criminal act as charged (Ref. 48, Standard 7-7.5). Third, for individuals found IST/NR, we view the possibility of a future criminal trial as a substantial disincentive to recovery. 31 If this situation exists in a particular jurisdiction, we propose that at the man- datory hearing, in addition to a presumptive finding of guilt to the crime charged, the IST/NR individual, at the discretion of the defense attorney, should be allowed to raise an insanity plea at this hearing. This insanity portion of the hearing can either lead to an insanity acquittal or become part of the record for any future criminal trial or negotiation that may arise if the individual is restored to competency. Fourth, the defense attorney should undertake an evaluation of criminal responsibility early after the criminal charge has been filed, even if the individual is declared IST, with the confidentiality of the ac- cused protected under lawyer– client privilege. If an evaluation of insanity soon after the crime is ordered by the defense, the expert’s report is not automati- cally discoverable unless it is brought to the attention of the court by the defense. It is equally important to have this evaluation done early, even if the client and the attorney need it many years later, in the event that the client regains competency and the charges are reinstated. Finally, following the imposition of an insanity verdict, the newly declared insanity acquittee can then follow the special procedures in place for insan- ity acquittees in that jurisdiction. Our fourth and fifth recommendations are in- tended as a proposal that is beyond our competency as psychiatrists, but one that even the Jacksoncourt mentioned as worthy of consideration. 6 Conclusion We have presented three models of special proce- dures that exist today in California, Oregon, and Ohio to manage the disposition of those found IST/NR and who are presumed to continue to be dangerous. These are contemporary examples of how civil commitment law following BaxstromandJack- son has morphed into special commitment proceed- ings for special populations. While there may be models in other states that have not yet come to our attention, we believe these three illustrate the point that special procedures, for better or for worse, are the legacy of the Baxstrom Principle, translating civil commitment law into contemporary times. We agree with Hoge 45 that this is the time to try something new as proposed earlier by the ABA with the addi- tions suggested above, and to finally merge a portion of the IST/NR population into the modern postver- dict management of insanity acquittees in an effort to settle these questions and to give this population a fairer opportunity for recovery. References 1. Stone A: Mental Health and Law: A System in Transition. Pub- lication 76-176. Washington DC: Department of Health, Edu- cation, and Welfare, 1976 2. Appelbaum PS: Almost a Revolution: Mental Health Law and the Limits of Change. New York: Oxford University Press, 1994 3. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) IST/NR and Dangerous 6 The Journal of the American Academy of Psychiatry and the Law 4. Baxtrom v. Herold, 383 U.S. 107 (1966) 5. Steadman HJ: Implications from the Baxtrom experience. J AmAcad Psychiatry Law 1:189 – 6, 1973 6. Jackson v. Indiana, 406 U.S. 715 (1972) 7. Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968) 8. Humphrey v. Cady, 405 U.S. 504 (1972) 9. Parker GF: The quandary of unrestorabiity. J Am Acad Psychiatry Law 40:171– 6, 2012 10. Kaufman AR, Way BB, Suardi E: Forty years after Jackson v. Indiana: states compliance with “reasonable period of time” rul- ing. J Am Acad Psychiatry Law 40:261–5, 2012 11. Morris DR, Parker GF: Jackson’s Indiana: state hospital compe- tence restoration in Indiana. J Am Acad Psychiatry Law 36:522– 34, 2008 12. Morris DR, DeYoung NJ: Long-term competence restoration. J Am Acad Psychiatry Law 42:81–90, 2014 13. Fitch LW: Forensic mental health services in the United States: 2014, assessment #3. Alexandria, VA: National Association of State Mental Health Program Directors. Available at: https:// nasmhpd.org/sites/default/files/assessment%203%20-%20 updated%20forensic%20mental%20health%20 services.pdf. Ac- cessed April 8, 2019 14. Simpson JR: When restoration fails: one state’s answer to the dilemma of permanent incompetence. J Am Acad Psychiatry Law 44:171–9, 2016 15. In re Davis, 505 P.2d 1018 (Cal. 1973) 16. Cal. Penal Code § 1370 (2017) 17. Cal. Penal Code § 1370 (2018) 18. Letter from Judge Harry F. Brauer, March 30, 1973. Representa- tive Murphy’s bill file California State Archives 19. New York Times: Californian guilty in 10 murder cases. August 20, 1973, p 10. Available at: https://www.nytimes.com/1973/ 08/20/archives/californian-guilty-in-10-murder-cases.html. Ac- cessed November 22, 2019 20. Rationale for AB1529 (not dated, title illegible). Representative Murphy’s bill file California State Archives 21. Cal. Welf. & Inst. Code § 5008 (1974) 22. Assembly Final History, California Legislature 1973–1974 Reg- ular Session. Available at: https://clerk.assembly.ca.gov/sites/ clerk.assembly.ca.gov/files/archive/finalhistory/1973/volumes/ 7374vol1_2ahr.pdf. Accessed May 5, 2019 23. Cal. Welf. & Inst. Code § 5361 (2019) 24. Conservatorship of Hofferber, 616 P.2d 836 (Cal. 1980) 25. Bloom JD, Buckley MC: The Oregon psychiatric security review board: 1978 –2012. J Am Acad Psychiatry Law 41:560 –7, 2013 26. Newman SS, Buckley MC, Newman SP, Bloom JD: Oregon’s juvenile psychiatric security review board. Jam Acad Psychiatry Law 35:247–52, 2007 27. Britten J, Bloom JD: Oregon’s gun relief program for adjudicated mentally ill persons: the psychiatric security review board. Behav Sci & L 33:323–33, 2015 28. ORS 426.701–702 (2017) 29. 77th Oregon Legislative Assembly, 2013 Regular Session, Staff Measure Summary, Senate Committee on Judiciary, SB 421 A. Available at: https://olis.leg.state.or.us/liz/2013r1/downloads/ measureanalysisdocument/19163. Accessed April 9, 2019 30. Rodol L, Epson MF, Bloom JD: Limitation of constitutional protections in Jackson v. Indiana pertaining to charges with no statute of limitations. J Am Acad Psychiatry Law 41:114 –20, 2013 31. Disability Rights Oregon: The incarceration of D.S., an investi- gative report. Available at: http://droregon.org/wp-content/ uploads/the-incarceration-of-d.s.—-an-investigative-report.pdf. Accessed April 9, 2019 32. Psychiatric Security Review Board: Civil commitments for ex- tremely dangerous person (EDMIP). Available at: https://www. oregon.gov/prb/documents/civil%20commitments%20edpmi. pdf. Accessed April 13, 2019 33. Or. Rev. Stat. § 161.370(13) (2017) 34. Or. Rev. Stat. § 426.005– 415 (2017) 35. Or. Rev. Stat. § 161.370(10) (2017) 36. Kansas v. Hendricks, 521 U.S. 346 (1997) 37. Ohio Rev. Code Ann. § 2945.38 (C) (1) (2019) 38. Ohio Rev. Code Ann. § 2945.39 (A) (1) (2) (2019) 39. Ohio Rev. Code Ann. § 2945.401 (J) (2) (A), (2019) 40. State v. Williams, 902 N.E.2d 1042 (Ohio Ct. App. 2008) 41. State v. Williams, 930 N.E.2d 770 (Ohio 2010) 42. Choi O, Weiss KJ: Adjudicating dangerous and incompetent de- fendants: civil or criminal. J Am Acad Psychiatry Law 40:279 – 81, 2012 43. McDougall J: Incompetent not restorable, Minutes, Arizona Committee on Mental Health and The Justice System (approved on March 25, 2019), pp 5–7. Available at: https://www. azcourts.gov/portals/74/mhjs/minutes/draftminutes032519mhjs. pdf?ver 2019-04-26-085343-800. Accessed June 9, 2019 44. Levitt GA, Vora I, Tyler K, et al: Civil commitment of incompe- tent defendants. J Am Acad Psychiatry Law 38:349 –58, 2010 45. Hoge SK: Commentary: resistance to Jackson v. Indiana– civil commitment of defendants who cannot be restored to compe- tence. J Am Acad Psychiatry Law 38:359 – 64, 2010 46. Bloom JD, Britton J, Berry W: The Oregon Court of Appeals and the state civil commitment statute. J Am Acad Psychiatry Law 45:447–51, 2017 47. American Bar Association: Criminal Justice Mental Health Stan- dards, Part IV. Competence to stand trial, 7-4.1–1.14 Disposition of permanently incompetent defendants (7-4.13). Washington, DC: American Bar Association, 1989 48. American Bar Association: Criminal Justice Standards on M ental Health, 2016. Available at: https://www.americanbar.org/ content/dam/aba/publications/criminal_justice_standards/ mental_health_standards_2016.authcheckdam.pdf. Accessed May 7, 2019 49. Slobogin C: The American Bar Association’s criminal justice mental health standards: revisions for the twenty-first century. Hastings Const L Q 44:1–35, 2016 50. Bloom JD: Civil commitment is disappearing in Oregon. J Am Acad Psychiatry Law 34:534 –7, 2006 Bloom and Kirkorsky 7 Volume 48, Number 2, 2020
After completing the readings for this module, review the sentencing mitigation report completed for Alexander Blair (Alexander Blair Defense Sentencing Memo.pdf). In 2015, Mr. Blair (then 29 years ol
DATE DOWNLOADED: Mon Sep 26 09:48:32 2022 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Susan Hayes, A Review of Non-Custodial Interventions with Offenders with Intellectual Disabilities, 17 CURRENT Issues CRIM. Just. 69 (2005). ALWD 7th ed. Susan Hayes, A Review of Non-Custodial Interventions with Offenders with Intellectual Disabilities, 17 Current Issues Crim. Just. 69 (2005). APA 7th ed. Hayes, S. (2005). review of non-custodial interventions with offenders with intellectual disabilities. Current Issues in Criminal Justice, 17(1), 69-78. Chicago 17th ed. Susan Hayes, “A Review of Non-Custodial Interventions with Offenders with Intellectual Disabilities,” Current Issues in Criminal Justice 17, no. 1 (July 2005): 69-78 McGill Guide 9th ed. Susan Hayes, “A Review of Non-Custodial Interventions with Offenders with Intellectual Disabilities” (2005) 17:1 Current Issues Crim Just 69. AGLC 4th ed. Susan Hayes, ‘A Review of Non-Custodial Interventions with Offenders with Intellectual Disabilities’ (2005) 17(1) Current Issues in Criminal Justice 69 MLA 9th ed. Hayes, Susan. “A Review of Non-Custodial Interventions with Offenders with Intellectual Disabilities.” Current Issues in Criminal Justice, vol. 17, no. 1, July 2005, pp. 69-78. HeinOnline. OSCOLA 4th ed. Susan Hayes, ‘A Review of Non-Custodial Interventions with Offenders with Intellectual Disabilities’ (2005) 17 Current Issues Crim Just 69 Provided by: The University of Southern Mississippi Libraries — Your use of this HeinOnline PDF indicates your acceptance of HeinOnline’s Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License — The search text of this PDF is generated from uncorrected OCR text. — To obtain permission to use this article beyond the scope of your license, please use: Copyright Information A Review of Non-custodial Interventions with Offenders with Intellectual Disabilities Susan Hayes* Introduction People with intellectual disabilities are over-represented in the criminal justice system in every Western jurisdiction in which research has been conducted, compared with the community prevalence of intellectual disability, which is estimated to be 1-3% (Hayes & Craddock 1992). The American Association on Mental Retardation (AAMR 2002) definition of intellectual disability (referred to as mental retardation by the AAMR) indicates that the disability is characterised by significant limitations both in intellectual functioning and in adaptive behaviour as expressed in conceptual, social, and practical adaptive skills, a standard score of 70 (two standard deviations below the mean) usually being accepted as the cut off for intellectual disability. Thus, in order to make a diagnosis of intellectual disability, both cognitive and adaptive skills must be assessed. In New South Wales, recent figures indicate that about 19-20% of the prison population has an intellectual disability, an increase of nearly 8% since the late 1980s when research was first conducted (Hayes 2000). In the USA, the prevalence is estimated as being between 4-14% of the prison population (Petersilia 1997), although the prevalence rates are mainly based on administrators’ estimates rather than samples of prison populations. Petersilia (1997:36) maintains that the numbers appear to have doubled in the USA in a decade, and are likely to increase further, owing to a number of factors including an apparent increase in the prevalence of intellectual disability in low income populations, greater numbers of young people (especially minority groups) coming under ‘correctional control’, continuation of de-institutionalisation along with a lack of properly resourced community and mental health services, and inadequate diversionary programs at all points throughout the criminal justice process. In the United Kingdom, low rates of intellectual disability amongst the prison population are reported, whereas rates of offenders with intellectual disability incarcerated in secure psychiatric hospitals and units are fairly consistent with imprisonment rates in other nations, at 16% (Taylor et al 1998). Thus, in the UK, over-representation of people with intellectual disabilities in the criminal justice system is occurring, but precise statistics cannot be established until coordinated research occurs in psychiatric hospitals, secure units and prisons. * Susan Hayes is Associate Professor and Head of the Centre for Behavioural Sciences in the Discipline of Medicine, D06, University of Sydney, NSW Australia 2006, . 70 CURRENT ISSUES IN CRIMINAL JUSTICE Complicating the general issue of over-representation is the finding that the recidivism rate for this group is high, and for sex offenders with intellectual disability lies between 40- 70% (Klimecki et al 1994; Lindsay & Holland 2000). Given this level of recidivism, a longitudinal study of prevalence, or research involving a number of different services, may include the same offender serving a sequence of brief sentences either in prison or community-based services, and therefore the true prevalence could be over-estimated. Two important issues arise from research into the disposition of offenders with intellectual disabilities in Western jurisdictions. First, the design of research studies, including clear definition of the term ‘intellectual disability’, is important in determining an accurate rate of over-representation. One well-designed research study (Carey et al 2000), conducted with full cooperation from Irish corrective services, sampled 10% of the total prison population in every prison, and found that 28.8% of the sample scored below 70 on intelligence tests. This study avoids many of the usual pitfalls that be-devil research in this area, such as the inclusion of inmates pre-selected according to some criteria or nominated for participation by corrective services officers, non-random samples of inmates that might favour inclusion of non-disabled inmates, omitting to sample some prisons in a system (prevalence rates of intellectual disability can vary in different prisons or even amongst sections of one prison), administration of group tests of intelligence (individual tests usually indicate a higher rate of intellectual disability), use of un-normed and un-validated assessments of intelligence (including estimates by administrators), administration of tests by non-psychologists, and exclusion from the sample of some problem groups such as protection prisoners, non-English speakers and psychiatrically disturbed prisoners. Even this study had a major limitation, however, in neglecting to assess adaptive behaviour skills. Only through well-planned and thorough research can an accurate picture of the prevalence of intellectual disability in criminal justice populations be obtained, which is essential in planning resources and services. Furthermore, information about the prevalence of intellectual disability at various points in the criminal justice system is vital, if equitable treatment within the system and in respect to sentencing is to be achieved (Hayes 1996). Secondly, diversion from the criminal justice system is not always the best option for people with intellectual disabilities who commit crimes. The checks and balances built into any diversionary scheme need to be carefully examined in order to ensure that human and civil rights are not violated when people with intellectual disabilities are held in hospitals and secure units without trial, without regular reviews, and without a finite term of incarceration (Hayes & Craddock 1992). Opportunities for intervention with offenders with intellectual disabilities Preventative intervention The New South Wales Parliamentary Committee on Law and Justice conducted an enquiry into crime prevention through social support (NSW Parliament 1999: Chapter 8), devoting some attention to crime prevention and people with intellectual disabilities. Strong evidence supports early intervention strategies targeting behavioural disturbances, and aimed at preventing involvement with crime; such strategies are cost-effective for the potential offenders, families, victims and the community (Rand Research Brief 1997). An example of an effective early intervention is provision of training for parents in strategies for managing challenging behaviours. Other strategies which reduce the incidence of offending and are cost-effective include incentives for young people to remain at and graduate from high school, close supervision of delinquents by juvenile justice services, early home-visit VOLUME 17 NUMBER I OFFENDERS WITH INTELLECTUAL DISABILITIES 71 and day-care programs, early intensive programs to identify and address behavioural difficulties that occur at pre-school age, and prevention of violence and abuse in families, which is emulated by the children in the family. These types of early intervention must be implemented in a comprehensive and thorough manner, and be available to every family and young person requiring assistance (Rand Research Brief 1997). At time of arrest Police generally receive little training about intellectual disability, and often experience difficulty interviewing a person with an intellectual disability who is a suspect or victim of crime. One approach to assisting police has been trialled by the Illawarra Disability Trust (Shaddock & Shaddock 1998), which established the Intellectual Disability Expert Assistance Line (IDEAL). IDEAL provides a 24-hour emergency support service for people with intellectual disabilities who become involved with police, and utilises support persons to attend police interviews with the interviewee who has an intellectual disability; a similar scheme is operated by the Victorian Office of the Public Advocate (Office of the Public Advocate 2003). The Illawarra scheme offers diversionary options where appropriate and possible, so that the offender can attend social and educational skills programs, and counselling. The scheme also incorporates a police training component. A review of the project indicates the service is under-utilised, a major reason being the inability of police to identify an interviewee who has an intellectual disability. Police are reluctant to involve a third party in the interview, and claim that there are time constraints in ‘getting a result’ when investigating a crime. The turn-over of police officers means that many police new to the area are unfamiliar with the service. Lack of awareness of the scheme is not confined to police, as many families of accused persons with an intellectual disability surveyed indicate that they have not heard of the service and therefore do not access it on behalf of their family member. Finally, the service is under-resourced, with too few professional staff supporting the volunteers who attend police stations or court hearings with the clients. Police in-service training about intellectual disability and appropriate resources tends to be plagued by difficulties (Shaddock & Shaddock 1998), especially when training days are not mandatory and there is no reward for officers in terms of contribution to pay increases or promotion. Recalling complex information is difficult, and alternative forms for conveying information, including video presentations and articles in police journals, are needed for those who do not participate in the courses, and to reinforce information for those who do. On-going in-service training has significant cost implications if all police officers are to be involved. Difficulties with under-utilisation of third party support schemes during police questioning, and with police training in the area of intellectual disability are not confined to Australian jurisdictions (Bean & Nemitz 1995), and yet such schemes must become an integral part of police procedure if the rights of people with intellectual disabilities in the criminal justice system are to be maintained. A consequence of inadequate police training in disability issues is the inability of police to identify the presence of intellectual disability, which is an important issue in the context of legislation that attempts to ensure that people with intellectual disabilities have their rights recognised during the police interview and arrest process, for example, the Crimes Amendment (Detention after Arrest) Act 1997 (NSW) and Regulation (1998). People with intellectual disability become adept at disguising their disability, and recognising the condition is hampered further by dual diagnoses of psychiatric disorder and substance abuse. Police prosecutions have been sometimes unsuccessful because of faulty police JULY 2005 72 CURRENT ISSUES IN CRIMINAL JUSTICE questioning of suspects, coerced confessions and violation of rights, especially the right to remain silent, and the right of a vulnerable suspect to have a third party present during the police interview. Even these failed prosecutions have not yet encouraged police forces to improve training in recognising and dealing appropriately with this ‘at risk’ group. Whilst police services complain that they have no way of identifying the suspect with an intellectual disability, a brief screening instrument (the Hayes Ability Screening Index – HASI) has been designed for this purpose and could be comprehensively adopted by police services in Australia (Hayes 2000) and elsewhere. The trial process and diversion In addition to issues of fitness to be tried, inability to understand the charge and lack of comprehension of the charge and courtroom processes, the accused with an intellectual disability faces practical difficulties including getting to court on time, accessing legal assistance, and understanding the outcomes of the case. Whilst court assistance services have been trialled (Shaddock & Shaddock 1998) service providers working in the area of intellectual disability may not be suitable to act in the role of court supporters, because the services and the skills required are different. Carers can find it difficult to maintain care for their other clients because the unpredictable nature of court appearances makes scheduling difficult; workers might spend many days at court before a case is concluded. In addition, ethical issues can arise, for example, conflict of interest between being a carer and an advocate in the criminal justice system, or where the victim of a crime is a client of the same service as the accused. Over-taxed legal aid services often mean rushed and last minute conferences with legal aid solicitors, with the solicitor having little opportunity to arrive at an understanding of the client and their disability. Establishing and adhering to service boundaries can prove problematic, with clients expecting continuity of services from the court support worker after the court appearance, not understanding why support has been withdrawn at the conclusion of the case. The NSW Justice Health Court Liaison Service provides early intervention mental health services at Sydney metropolitan and rural Local Courts. The service provides psychiatric expertise and advice to magistrates when people with mental illness first appear in court. The aim is to divert mentally ill offenders to appropriate treatment programs and to prevent inappropriate incarceration. Mental health nurses are available to make an immediate assessment and provide a report on options for further assessment and treatment. The Service’s capacity to identify and divert people with intellectual disabilities has not been evaluated, however. The forensic diversion service established at the Birmingham (UK) court complex provides a further example of the network of facilities required for court support schemes to be effective (Chung et al 1998). Although the main focus of the Birmingham service is upon identifying and diverting offenders with psychiatric symptoms, features of the scheme could be readily adapted for offenders with an intellectual disability. The service provides a community psychiatric nurse at the police station who interviews the offender, gathers information about the alleged offence and the accused’s history, identifies whether the person is mentally disordered, and recommends hospital or out-patient treatment. A parallel scheme exists in the remand prison where liaison occurs between the courts, police and nursing personnel. The community psychiatric nurse attends the prison to interview all new receptions, and identify those who need the support of the service. A bail hostel established specifically for these prisoners provides an alternative to remanding the accused in custody, and in addition, a boarding house scheme provides a range of accommodation facilities and resources, whilst maintaining contact with psychiatric hospitals and mental health teams. The various components are closely networked. VOLUME 17 NUMBER I OFFENDERS WITH INTELLECTUAL DISABILITIES 73 Programs and facilities for diversion from the criminal justice system for offenders with an intellectual disability have been also established in various states and towns in the United States of America (Petersilia 1997). Although there are few formal outcome evaluations, the available evidence suggests that the important factors in reducing recidivism among clients of such services include residential programs that are staffed on a 24-hour basis and have the flexibility to accept new referrals immediately, the provision of living skills programs and vocational preparation courses, establishment of halfway houses to stage re- integration into the community, and development of personalised justice plans that are monitored until the individual completes their sentence. Petersilia (1997:42) comments that ‘persons who operate and fund the programs believe that they protect the public, teach the [intellectually disabled] offenders to obey the law, and save tax dollars’. Non-custodial sentencing options Non-custodial sentencing options include probation and parole supervision, home detention, and referral to special programs or units as described above. A major reason for imprisonment of this group is the lack of secure and supervised community residential placements, including bail hostels and secure units, and specialised programs. Once the important issue of stable accommodation is resolved, there is a wide range of effective community-based options that can be implemented for offenders with an intellectual disability. Probation and parole Probation and parole can be used effectively with offenders with an intellectual disability. The Lancaster County, Pennsylvania, USA, Office of Special Offender Services (SOS) (Wood & White 1992) was the first of its kind in the United States to address the special needs of offenders with intellectual disability, and is a model for other similar projects. A ten-year evaluation shows a consistently low recidivism rate of 5%. The SOS programme utilises a cooperative approach between the criminal justice and human services systems, through which individual probation/parole clients are intensively supervised. In addition, SOS acts as an educational resource to members of the legal, educational, and intellectual disability communities regarding the issues and concerns specific to these offenders, accomplished through conference, seminar and classroom presentations. Inter-agency cooperation is vital to the success of the program, which incorporates aspects such as intensive supervision, medication monitoring, personal and family counselling, substance abuse programs, psychometric assessments, and vocational training and placement assistance. Specialist programs An offender may receive a non-custodial sentence on condition that s/he attends a specialist program that can target substance abuse or other behavioural problems. Research indicates that, like non-disabled offenders, between two-thirds and three-quarters of defendants with intellectual disability indicate that they had consumed alcohol at the time of the offence (Hayes 1994; Hayes 1996), and they are also likely to have a history of abusing other substances. Specialist substance abuse programs for offenders with an intellectual disability require trained staff, and other resources including supervised accommodation. This group of offenders tend not to be successful in verbally based group-work programs because of their poor verbal skills and short attention spans. Individual therapy and counselling which takes their communication and adaptive behaviour deficits into account are more effective interventions (Lindsay 2002). JULY 2005 74 CURRENT ISSUES IN CRIMINAL JUSTICE Multi-systemic therapeutic interventions for juvenile offenders consider all of the social systems in which a delinquent child functions, including home, school, neighbourhood, and peer group. Ideally, all of these systems need to be involved in consistent treatment strategies derived from family therapy, behavioural parent training and cognitive- behavioural therapy (Bourdin 1999). Therapy must be comprehensive and flexible in addressing the multiple determinants of delinquent behaviour. Such therapies are costly in terms of expertise (Master’s level therapists need to be utilised) and caseloads (four to eight families per therapist), in order to demonstrate long-term reductions in criminal activity, violent offences, drug-related arrests and incarceration. Sex offender programs for people with intellectual disabilities can be offered in the community (Lindsay & Smith 1998) or in custodial environments. Sex offenders with intellectual disability typically have confused self-concepts, poor peer relations, a lack of sexual and socio-sexual knowledge, negative early sexual experiences (including a history of childhood sexual abuse), lack of empathy, poor self-esteem and a lack of personal power (Lindsay 2002). An important diagnostic issue in assessing and treating this group is to determine whether the behaviour is diagnosed as paraphilia, or is instead a reflection of the individual’s functional age and modelling on dysfunctional behavioural patterns they have experienced (Hayes 1991). Problems facing professionals conducting programs for these offenders include high recidivism rates, and withdrawal from the program, the latter being linked to re-offending (Law et al 2000). Lengthy treatment programs of two or more years (Lindsay & Smith 1998) have been shown to be more successful than short programs, although there are corresponding cost implications. According to Lindsay and Smith (1998) many sex offenders with an intellectual disability lack strong motivation for change, which makes engaging them in a two-year program a challenging exercise. Most programs focus on the lack of ability to empathise with victims (Haut et al 2000), the need to build up cohesion within the treatment group and encouragement of insight into the offending behaviour. Poor completion rates can be improved through conditions establishing compulsory attendance for treatment, although imposing conditions can in turn create an escalating problem for the offender. If, for example, the individual fails to attend for reasons related to intellectual disability, including inability to tell the time or to travel independently on public transport, and the conditions are breached, the offender may then receive a custodial sentence. Critical to long-term non-offending is the need for on-going support for these offenders after their attendance at the program ceases (Lindsay 2002). Preventative interventions for people with intellectual disabilities at risk of being charged with sexual offences tend to be inadequate (Hudson et al 1999). Preventative programs with young people with an intellectual disability include sex education and case plan development. Secondary prevention, aimed at preventing problem behaviours from escalating, includes training teachers and others to identify the potential problem behaviours, and to provide education and immediate intervention. Lastly, prevention of recidivism for those who have already engaged in illegal behaviours includes placement in facilities or programs designed to limit further opportunities for offending, development of a case plan, appointment of a case manager, and consistent protocols across all services involved with the client. Hudson and colleagues (1999) emphasise the need for evidence- based programs. Group treatments for sex offenders with an intellectual disability based on a broad cognitive-behavioural model and continuing for one year, over a total of 50 sessions, are successful in changing the attitudes of offenders and reducing re-offending (Sinclair & VOLUME 17 NUMBER I OFFENDERS WITH INTELLECTUAL DISABILITIES 75 Murphy 2000; Hordell et al 2000). Using baseline measures that include both mainstream sex-offender and specific intellectual disability tests, the results indicate that treatment is effective in impacting on cognitive and social skills measures relevant to the commission of sex offences. The likelihood of having been the victim of abuse is high amongst sex offenders with intellectual disability (Hayes 2004). The related issue of peer abuse, either sexual or physical or both, of one person with an intellectual disability by another, is a widespread problem, which many service agencies have failed to address; repeated offences are frequent and lack of appropriate intervention is the norm (Brown & Stein 1997). Therefore, in any program for sex offenders with intellectual disability, one of the major aims must be to protect participants against ongoing abuse from other participants, or residents in the same accommodation, and to ensure that they are not residing in, or returning to an abusive environment. Prevention of violence in families and residential settings is a primary way of avoiding the development of violent behaviour, and yet this is a much under-estimated factor in managing challenging behaviour. Violence prevention programs for people with intellectual disabilities must be a priority (Brown & Stein 1997). Research focusing on the most effective strategies for programs for sex offenders with intellectual disabilities is inconclusive, partly owing to the diverse aetiology of the problem behaviour, and partly owing to methodological problems with research, including the ethical dilemma of having a ‘no treatment’ group. The few clear findings that emerge indicate that brief interventions are unlikely to be effective, cognitive behavioural techniques are useful, and multi-disciplinary approaches, together with long-term support and follow-up, are essential (Lindsay 2002). Apart from sexually offending behaviour, other behavioural problems occur at higher rates amongst offenders with an intellectual disability, compared with non-offenders who also have an intellectual disability (Hayes 2002), and compulsory attendance at a behaviour management program can be an effective non-custodial option. Interpersonal aggression is clearly a major cause of charges of assault, manslaughter or murder. Programs to manage aggressive behaviour in people with intellectual disability can, however, encounter difficulties owing to the disparate nature of the causes of the aggression, ranging from effects of organic brain damage, to substance abuse, to modelling on familial violence and abuse, or poor socialisation. Research exploring the differences between aggressive and non-aggressive people with intellectual disability indicates that a vulnerable sense of self contributes to aggression (Jahoda et al 1998). If individuals perceive that they are being treated as if they are stupid or intellectually disabled, they are more likely to respond aggressively in interpersonal situations. Understanding the nature of the individual’s self- perceptions provides valuable insights into what may otherwise be regarded as unpredictable outbursts, and this topic needs to be included in training programs for police, court personnel, probation and parole services and the judiciary. Challenging or offending behaviour can be altered, through implementation of programs that are evidence-based and designed, implemented and monitored by specialist staff experienced in the area (Simpson, Martin & Green 2001). Collection of appropriate baseline data for every client is vital, and participation in the program needs to continue for as long as is necessary to address the behaviours, rather than being time limited according to waiting lists and cost. Furthermore, the program must be reinforced periodically, on a long-term basis. All of the systems and services which assist the individual must be involved in the program in a consistent and integrated fashion. JULY 2005 76 CURRENT ISSUES IN CRIMINAL JUSTICE A large proportion of offenders with intellectual disability have co-existing psychiatric or substance abuse problems; depression, post-traumatic stress disorder, psychotic illness and organic brain damage are amongst the most frequent dual diagnoses, necessitating thorough and appropriate psychiatric and psychological assessment and intervention by mental health professionals experienced in the field of intellectual disability (Taylor et al 1998). Whilst medication is frequently used to control challenging behaviour, there is no clear evidence as to its effectiveness for offenders with intellectual disability. A study of anti-psychotic medication for people with intellectual disability and challenging behaviour provides no evidence as to whether anti-psychotic medication does or does not help these clients (Brylewski & Duggan 1999). Because of the limited data on this important issue, good quality research is urgently needed. Conclusion Accused persons and offenders with an intellectual disability in the criminal justice system have not been well served in terms of the diversionary or non-custodial sentencing options that are available for them, and courts and the community have rightly tended to be wary of services and programs that lack rigorous evaluation. Increasingly, evidence is emerging as to the effectiveness of various treatment and intervention programs (Law et al 2000; Lindsay & Smith 1998; Simpson, Martin & Green 2001). The research indicates that interventions need to continue for longer periods than has been previously considered necessary. Longer programs are more effective than brief interventions, and need to be more intensive for those clients whose risk level is higher (Simpson, Martin & Green 2001). Inter-agency cooperation is vital, and there must be effective protocols developed so that the offender with an intellectual disability, especially the dually diagnosed individual, does not become lost in or between the systems. Funding emphasis should be on early intervention and prevention of offending behaviour, rather than occurring at the end-point of the criminal justice system, the prison system. Coordinated and ongoing training of personnel from all government and non-government agencies is essential, and must include police, lawyers, the judiciary, probation and parole, and corrective services personnel. Effective non-custodial interventions are expensive, but not as expensive as repeat incarceration of offenders with an intellectual disability (Rand Research Brief 1997). Lastly, many offenders with an intellectual disability have been the victim of violence and crime (Hayes 2004) and therefore addressing their experiences as a victim and preventing further victimisation are essential pre-cursors to interventions aimed at their offending behaviour. Service provision for this group to date has tended to be fragmented, difficult to access, not based on rigorous outcome evaluation, and unavailable in many areas. Given the level of over-representation of offenders with intellectual disabilities in the criminal justice systems of many jurisdictions, preventative and treatment services must be improved. References American Association on Mental Retardation (2002) Mental Retardation: Definition, Classification, and Systems of Supports (10th ed), American Association on Mental Retardation, Washington, DC. Bean, P & Nemitz, T (1995) Out of Depth and Out of Sight, Mencap, Midlands Centre for Criminology, University of Loughborough. 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