Tuesday, July 31, 2007

News from the Criminal Justice/Mental Health Consensus Project

From the July 2007 Consensus Project Newsletter:

"Nearly 30 state mental health directors gathered in Denver, Colorado earlier this month to participate in a special day-long session on criminal justice and mental health issues.
The National Association of State Mental Health Program Directors (NASMHPD), together with the Council of State Governments Justice Center, convened the meeting one day before the start of NASMHPD's summer meeting.

This meeting marked the first time NASMHPD has ever convened the state mental health directors for a session focused exclusively on criminal justice issues. The day-long session was the result of a series of meetings among a small group of state mental health directors interested in developing a blueprint for their counterparts across the country, which would chart a course for the successful reinvestment of state dollars in community-based behavioral health care services for people involved in the criminal justice system.

Participants discussed concentrating limited dollars on a "target population" of people with mental illness involved in the criminal justice system, ensuring services funded with reinvested dollars are most likely to have a positive impact on the target population, and developing outcome measures that policymakers could use to track the results of the reinvestment.

Incoming NASMHPD President, Carlos Brandenburg, administrator of the Division of Mental Health & Developmental Services within the Nevada Department of Human Resources, announced during the NASMHPD meeting that he would establish a "President's Task Force" that, together with the Justice Center, will work to develop this blueprint.

Another topic covered during the session was the role of mental health systems vis a vis crime victims. Presenters reviewed barriers that victims often encounter when seeking information about offenders ordered to receive treatment from the state mental health system, as well as steps that can be taken to address barriers. For more information on a project the Justice Center is coordinating with support from the
Office for Victims of Crime (OVC) to improve responses to these victims, click here.

Various state legislators who have led justice reinvestment initiatives in their states participated in the session, including Rep. Jerry Madden (R-TX), Rep. Michael Lawlor (D-CT) and Rep. Pat Colloton (R-KS). For more information about the justice reinvestment initiatives these lawmakers have led in their states,
click here."

Tuesday, July 17, 2007

ACLU Urges Tennessee Appeals Court to Reverse Death Sentence of Mentally Ill Man

ACLU Urges Tennessee Appeals Court to Reverse Death Sentence of Mentally Ill Man (7/17/2007)

CONTACT: media@aclu.org

NASHVILLE - The American Civil Liberties Union and the Office of the Tennessee Post-Conviction Defender today urged the Tennessee Court of Criminal Appeals to reverse the conviction and death sentence of Richard Taylor, who is severely mentally ill.

“Richard Taylor’s trial was fraught with error and injustice,” said Cassandra Stubbs, the attorney with the ACLU’s Capital Punishment Project who is representing Taylor on the appeal. “Our client was not competent to stand trial and was denied several fundamental rights. We hope the Court of Criminal Appeals will do the just and humane thing and right this grave wrong.”

In 2003, Taylor, who was schizophrenic, delusional and heavily sedated by forced medication, faced his two-day capital trial alone – representing himself without even standby counsel to help him. Wearing prison garb and sunglasses, Taylor called no witnesses, introduced no evidence, and presented no defense. The few cross-examination questions he posed during the guilt-innocence phase of his trial were delusional, and he was completely silent during the sentencing phase of the proceedings. The jury that sentenced Taylor to death was never presented with compelling evidence of Taylor's difficult childhood, suicide attempts, psychiatric hospitalizations or severe mental illness.

Taylor’s appeal raises numerous legal challenges to the trial and proceedings leading up to it, including the judge’s failure to hold a competency hearing during the trial when it was obvious that Taylor was incapable of standing trial and representing himself, said the ACLU. In addition, the appeal challenges the trial judge’s failure to question Taylor adequately about whether he wanted to waive his right to have the jury consider mitigating circumstances in his life, the judge's failure to appoint standby counsel, and the judge's ruling that Taylor could be forcibly medicated at trial.

Richard Taylor is represented on appeal by the ACLU’s Stubbs and Kelly Gleason of the Office of the Tennessee Post-Conviction Defender.

The ACLU’s appellate brief and more information about the case can be found online at:www.aclu.org/capital/mentalillness/30356res20070705.html

Thursday, July 12, 2007

New Report on Mental Illness and the Death Penalty in North Carolina

July 9, 2007
North Carolina Report Examines Mental Illness and the Death Penalty

A new report from the Charlotte School of Law on mental illness and the death penalty reveals that obstacles entrenched within the criminal justice system impede efforts to identify those with severe mental illness and treat them fairly. The report, "Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach," is based on a 2006 symposium hosted by the law school. It examines scientific studies of mental illness and provides an overview of laws established to protect those with mental illness from unjustly facing the death penalty. The report concludes that current legal protections are inadequate, in large part because mentally ill offenders are often allowed to undermine their own defense. Additionally, the legal definitions of mental incompetence which might spare a person from the death penalty do not align with clinical judgments that medical practitioners have to make. Moreover, jurors in death penalty cases often perceive mental illness as an aggravating - rather than a mitigating - factor.

The report concludes that a series of reforms are necessary to build a consensus between the science of mental illness and the law. In addition to its reform recommendations, the report highlights cases of mentally ill North Carolina defendants who have been sentenced to death. The report provides resolutions on this subject from the American Bar Association, the American Psychological Association, the National Alliance on Mental Illness, and the American Psychiatric Association. ("Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach," Charlotte School of Law, 2007).

The 78 page report, "Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach," is available in pdf format at: http://www.deathpenaltyinfo.org/CharlotteMI.pdf

(Source: Death Penalty Information Center)
More on North Carolina

On April 9, 2007, North Carolina Policy Watch released the results of its first “Carolina Issues Poll”, in which voters disapproved by a wide margin (52% to 30%) of the practice of sentencing offenders with severe mental illness to death. The press release can be found at http://ncpolicywatch.com/docs/pdfs/Carolina_Issues_Poll_Media_Release.pdf. Poll results can be found at http://ncpolicywatch.com/docs/pdfs/Carolina_Issues_Poll.pdf.

During the 2007 legislative session in North Carolina, State Senator Eleanor Kinnaird proposed allowing defendants with severe mental illness to avoid the death penalty if they were too mentally ill to understand their actions at the time of their crimes (Senate Bill 1075/House Bill 553). Under the bill, a mentally ill defendant either could ask a judge to rule on the issue before trial or ask a jury to consider it during the trial's sentencing phasee. Those already on death row could file an appeal. The bill did not specify which diagnoses qualify someone as being severely mentally ill. Rather, it defined severe mental illness as being unable to appreciate the wrongfulness of one's conduct, to use rational judgment or to conform their conduct to the law.

Neither the House nor Senate bills on mental illness and the death penalty passed out of committee during this session. North Carolina is one of at least three states, including Indiana and Washington, that considered such legislation in 2007.

(Source: http://www.newsobserver.com/102/story/573736.html)

Scott Panetti: Sane Enough to Execute?

July 13, 2007

Austin Chronicle

Scott Panetti: Sane Enough to Execute?


The U.S. Supreme Court's June 28 ruling in the case of Texas death row inmate Scott Panetti concludes that the law requires that condemned inmates have some "rational understanding" of why they're being executed in order to satisfy the Eighth Amendment's ban on cruel and unusual punishments. The court left open a single, significant question: Is Scott Panetti sane enough to die?

Writing for the 5-4 majority, Justice Anthony Kennedy opined that the Texas courts and the 5th U.S. Circuit Court of Appeals' handling of the Panetti case was "flawed" and "too restrictive" to satisfy the Eighth Amendment. In deeming him sane enough to be killed, the courts considered only that Panetti "is aware that he committed the murders," that he is "aware that he will be executed," and that he is "aware that the reason the State has given for the execution is his commission of the crimes in question." But according to Panetti, the state's reason for killing him is merely a cover story intended to stop him from preaching "the gospel of the Lord King."

That is irrelevant, says Clarence Thomas, writing for the conservative, four-justice dissent. The state owes Panetti nothing more that it has already provided. "While Panetti's mental illness may make him a sympathetic figure, state and federal courts have repeatedly held that he is competent to face the consequences of the two murders he committed," Thomas wrote. Therefore, this case "should be simple," Thomas wrote. It "must be dismissed." Given Panetti's background and the procedural history of his case, one has to wonder if Thomas is at least equally addled – if not more so – than the death row denizen he so easily disregards.

Panetti was convicted and sentenced to death for the 1992 murder of his in-laws, Joe and Amanda Alvarado, at their home in Fredericksburg. A diagnosed schizophrenic, Panetti previously had been hospitalized at least 11 times, last released from the hospital just two months before he killed the Alvarados. When he turned himself in to police that day, he told authorities that "Sarge" – a recurring auditory hallucination – was responsible for the murders.

In September 1994, a heavily medicated Panetti was deemed competent to be tried for the slayings, and Kerr Co. District Judge Stephen Ables allowed Panetti to represent himself at trial. Panetti wore a purple cowboy outfit to court, filed numerous rambling legal motions, and sought to subpoena nearly 200 witnesses – including Jesus Christ and Anne Bancroft. The trial was "truly a judicial farce and a mockery of self-representation," Panetti's standby attorney later said.

Panetti was convicted, each of his appeals was denied, and Judge Ables scheduled his execution for Feb. 5, 2004. Panetti's attorney filed a motion with the court claiming Panetti's mental illness rendered him incompetent to face execution. Ables denied the motion, but the federal district court ordered that he reconsider. Ables appointed two mental-health experts to assess Panetti's mental state; in April 2004, the experts concluded that Panetti's "uncooperative and bizarre" behavior was actually a sham and that he had "the ability to understand the reason he is to be executed." Ables refused to consider the defense's request for an evidentiary hearing and closed the case. Panetti's lawyers – now including Austin appellate whiz Keith Hampton – appealed. In September 2004, federal District Judge Sam Sparks called the state's handling of the case "constitutionally inadequate" but ultimately ruled against Panetti, noting that the 5th Circuit's "test for competency to be executed requires [that Panetti] know no more than the fact of his impending execution and the factual predicate for the execution."

The Supremes now say that the 5th Circuit's standard is not good enough. "The … standard treats a prisoner's delusional belief system as irrelevant if the prisoner knows that the State has identified his crimes as the reason for his execution," Kennedy wrote. There is nothing in the law to "indicate that delusions are irrelevant to 'comprehen[sion]' or 'aware[ness]' if they so impair the prisoner's concept of reality that he cannot reach a rational understanding of the reason for the execution," he wrote.

Appearing before the high court in March, Texas Solicitor General Ted Cruz argued not only that the 5th Circuit's standard was sufficient but also that Panetti didn't have standing to appeal. In his initial habeas appeal, Panetti failed to claim he would be incompetent to face execution, Cruz argued; moreover, the federal district court (and, ultimately, the Supremes) failed to offer deference to the Texas courts, which have consistently deemed Panetti competent. In his dissenting opinion, Thomas agreed. In Thomas' opinion, the state courts had "more than satisfied" their legal obligation to Panetti. Panetti's insistence that he is too crazy to die, Thomas opined, is nothing more than an "abuse" of federal habeas law.

Kennedy shoots down each argument and offers a harsh rebuke to the Texas courts and, specifically, to Judge Ables. No "deference is due" to the state courts, he wrote, because the courts failed to do anything but rubber-stamp the initial competency determination. Further, Kennedy opined, Panetti could not argue his incompetence to be executed until an actual execution date had been set – otherwise, he noted, every lawyer would be forced to waste court time and resources on the off-chance that her client may at some point in the future be deemed too deluded to execute.

Ultimately, Kennedy wrote, the courts must find a way to determine whether an inmate has a rational understanding of why he is to die. It is a question of retribution vs. spite: "[I]t might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole … to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed," Kennedy wrote. "The potential for a prisoner's recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoner's mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole."

Panetti's case will return to federal district court, where Judge Sparks will be asked to decide whether Panetti is, in fact, sane enough to die.

Copyright © 2007 Austin Chronicle Corporation. All rights reserved.

Monday, July 9, 2007

The Wrong Place to Treat Mental Illness

The Wrong Place to Treat Mental Illness

By Marcia Kraft Goin
Washington Post
Sunday, July 8, 2007; Page B07


Last month the Supreme Court rightly blocked the execution of Scott Panetti, a Texas man who was convicted of a double murder and who suffers from delusional schizophrenia. The case drew public attention to the intersection between mental illnesses and executions.

But what about those who are mentally ill and imprisoned but not on death row? A national conversation on this issue is urgently needed.

There is a pervasive attitude in this country that such people are getting what they deserve: After all, like Panetti, they are in jail for something.

But did you know that the Los Angeles County Jail houses the largest psychiatric population in the country? That's not justice. That's emblematic of a national emergency.

Before the 1960s, people with mental illnesses were generally cared for in institutional settings, mostly state-run psychiatric facilities. Many advocates correctly saw this as "warehousing" people who could be cared for in less restrictive settings. Federal legislation and the courts powered a move toward deinstitutionalization, calling on states and counties to provide resources for social services, vocational rehabilitation and treatment services. The introduction of effective antipsychotic medications also drove the trend toward deinstitutionalization.

In the decades since, community-based services have helped many people. But the situation today constitutes a national failure.

What's gone wrong?

Most important, the necessary community resources didn't materialize in anywhere near the level that was needed. Also, antipsychotic medications, while powerful treatments, don't work in isolation. Patients need a relationship with a psychiatrist, clinic or other stabilizing force to ensure adherence to drug regimens and achieve the best possible recovery.

Deinstitutionalization has succeeded in decreasing the overall number of hospital beds, but an unforeseen consequence has been the proportional increase in the number of people with mental illnesses housed in the criminal justice system. Worse, once imprisoned, people with mental illness are shown to have much longer incarcerations than other inmates, primarily because a prison environment and lack of treatment aggravate the very illness that has led to their objectionable or antisocial behavior.

While no one would argue that Scott Panetti belongs on the streets, his case compels us to consider the justice system's role: Is it to mete out punishment that seeks retribution, or are there cases where real justice means effective treatment that seeks rehabilitation?

Consider again Los Angeles County: In 2002 there were 38,600 psychiatric evaluations at the inmate reception center of the Twin Towers jail. Of these, 23,190 people (60 percent) were found to be in need of mental health treatment. A reasonable person could not fail to see the correlation between decreased funding for mental health resources, the closure of hospital beds, homelessness and the criminalization of mental illnesses. Untreated and lacking access to long-term care, people with mental illnesses often end up with symptoms and behaviors that result in jail time.

Cuts in state Medicaid budgets promise to exacerbate these problems. Not only is this shift in funding a blight on our society, it also costs money -- a lot of money. Corrections officials, mental health workers, medication, amortization of buildings and time spent by police in court all cost more than treating patients appropriately in their community. This doesn't make financial sense, much less humanitarian sense.

When considering the direction of public policies that affect those with mental illnesses, politicians and other officials must be guided by the latest research.

Government-funded studies have shown in recent years that jail-diversion programs, which help people get the treatment they need, result in positive outcomes for individuals, communities and the criminal justice system. While jail diversion does generally result in lower criminal-justice costs and greater treatment costs, studies are underway to analyze the differential.

The question the court answered in the Panetti case was about one's fitness to be executed, but in many more cases, the question is about the appropriateness of incarceration at all.

The writer is a past president of the American Psychiatric Association and director of residency training in the Psychiatric Outpatient Department at Los Angeles County General Hospital/University of Southern California School of Medicine.

U.S. Supreme Court Rules in Favor of Scott Panetti

On June 28, 2007, in a 5-4 decision, the U.S. Supreme Court ruled in favor of severely mentally ill death row inmate Scott Panetti and blocked his execution. The court questioned the value of executing a person who does not comprehend why he is being put to death. You can find the opinion (written by Justice Kennedy) at http://www.supremecourtus.gov/opinions/06pdf/06-6407.pdf. You can find more information about Scott Panetti and watch a short documentary about his case on the Texas Defender Service (TDS) website: http://www.texasdefender.org/. Additional information also is available from The Justice Project: http://www.thejusticeproject.org/press/releases/panetti-briefs.html.

StandDown Texas has posted all of the national and state-based media coverage of the Panetti decision. Go to http://standdown.typepad.com/.

Read the response from the National Alliance on Mental Illness (NAMI).
So what happens now to Scott Panetti? Well, the justices found that a lower federal appeals court had improperly interpreted Supreme Court precedent when they decided Panetti was sane enough to be executed. They said the 5th U.S. Circuit Court of Appeals in New Orleans used "an improperly restrictive test" to uphold the finding of competence. (The 5th Circuit Court of Appeals had said it didn’t matter what Panetti believed as long as he could acknowledge the murders as well as the stated purpose of his execution.) The Supreme Court decision sends the case back to a federal district judge to hold a hearing as to whether Panetti’s delusions are indeed so severe that he cannot make the connection between his crime and punishment and should be spared.

Here's more from the Wall Street Journal (June 29, 2007): "In the opinion, Justice Kennedy said 'gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose.' While Thursday's ruling continues a trend in which the Court has limited the imposition of the death penalty on defendants with limited intellectual capacity or maturity levels, it didn't address the rising issue of the influx of mentally ill defendants in the criminal justicesystem and on death row. In the opinion, Justice Kennedy stated as much, saying: 'we do not attempt to set down a rule governing all competency determinations.'"

At least 20 individuals have been executed by the state of Texas, despite documented histories of paranoid schizophrenia, bipolar disorder, and other severe mental illnesses; many were denied treatment before the commission of their crimes. Still others with mental illness continue to languish on death row, waiting, like Scott Panetti, to be found “competent to execute.” The 5th Circuit has never found a death row inmate incompetent for execution.