Long ago, an astute Kentucky lawyer described the courtroom as the “arena of human tragedy.” For the past three years I have observed the production. Victories, tragedies, romances (both sweet and bitter), comedies and mysteries all make their appearances in the arena. An observant onlooker may experience greater depth of feeling then is available on stage or screen, because the stories that play out do not involve actors. Most people miss the subtext behind the scenes; they never see the story that happens behind the curtain. Early in my career, I observed a tragedy that played out on a daily basis, but remains largely unseen to this day.
An unfortunate side effect of the deinstitutionalization movement is that persons with mental illness and with no support structure oftentimes become entangled in the criminal justice system.
Most of the time, the clients public defenders represent are charged with extremely minor infractions (criminal trespassing, disorderly conduct, etc.). In most of these cases, the person is given a “credit for time served” plea agreement, or the court simply dismisses the charge, and the person is allowed to go on their way, sans medication, support or shelter. The cycle then repeats itself again and again. Sometimes, a person suffering from a mental illness is accused of a more serious offense, and that takes far longer to sort out. But, the result is normally the same, with the person being released only to return again later in a deteriorated mental state.
The Kentucky Department of Public Advocacy, our state’s public defender program, represents clients suffering from mental illness on a daily basis. We have clients undergoing evaluations for criminal responsibility, we represent clients at competency hearings, and we represent many clients undergoing civil commitment procedures. In short, most of our attorneys know the intersection of mental illness and the criminal justice system. The Fayette County Office of the department set up a team of lawyers specializing in mental health issues to address some of the problems faced. However, we often see a lack of structured support for clients once they their criminal cases have been resolved, leading to recidivism. Also, sometimes this lack of support becomes a factor when we attempt to negotiate a favorable resolution.
The debate between long terms of commitment and community based care has continued since Geraldo Rivera’s expose on Willow brook (where he publicly exposed horrific conditions in a Staton Island mental hospital). Long-term commitment to mental hospitals presents many problems, especially if those institutions are under funded. However, those same problems can be seen if community based treatment fails to the point where incarceration becomes a substitute for hospitalization. Keeping a person in a jail cell during a mental episode is certainly more inhumane than keeping them in a hospital.
Kentucky’s mental health laws follow a simple formula. This summary is admittedly overly simplistic, to say the least. If a person is mentally ill, but that person does not present a danger to themselves or others then they cannot be committed on an involuntary basis. Further, if there is a “less restrictive option” compared to hospitalization then that person might not be held involuntarily at a mental health facility. Those standards are completely different from a person’s competence to navigate the legal system and also from an analysis of a person’s responsibility for a criminal act.
Ideally, this system would work. Those suffering from a mental illness and posing a danger would be committed to the mental hospital in the area until such time as they posed no danger or there was a less restrictive mode of treatment. They would receive treatment at the hospital to the point where they could manage with a less restrictive form of community-based care. If a resurgence of mental illness creating a danger took place, then that person could be recommitted to the hospital until regaining composure. This is how the law is supposed to work.
The system breaks down when community based care becomes under funded or inaccessible. People suffering from mental illness often don’t have basic resources necessary for survival. They wind up homeless. Many are victimized. And, as their mental illness progresses, they can often times commit criminal acts. At that point they are arrested, taken to jail, and oftentimes referred back to the mental hospital or simply released.
The grey area exists when people don’t meet the criteria to be involuntarily hospitalized, but still exhibit mental illness clearly. Community based treatment should be the favored method of treating those with mental illness. But, without sufficient safeguards and community help, those with mental illness have a far greater likelihood of being funneled into the criminal justice system rather than being re-hospitalized initially. The process of incarceration prior to hospitalization is actually illegal under our current law. And this process arguably costs the taxpayers of this county more than if the process allowed under the law was followed. Kentucky already offers these services to a limited extent. Many committed men and women attempt to help those needing them. Yet, this problem persists because we need to re-engineer a system better designed to provide care to those with mental illness but without the knowledge or ability to access it.
We have already begun to slowly move forward on the legal issues through motion practice in Fayette County, with favorable results. However, without a reliable community based treatment option, we are almost certain to see the same recidivism. As lawyers, the Kentucky Department of Public Advocacy litigates predominately criminal charges. When the case is closed, we lose our ability to help our clients in a substantive way with state resources. It becomes necessary for the community to gather around these individuals and help them once a criminal case is resolved. This help has been shown to produce results, and end the cycle. An investment in community-based treatment will provide better results for our clients and concomitant cost savings in the long run. Without committed, accessible and effective community based treatment for all of those suffering from mental illness we will always be stuck with the same problem.