The criminal justice system in the United States has in effect become a second public mental health system. A large percentage of persons in U.S. jails and prisons have serious mental illness, substance abuse issues, intellectual disabilities, or a combination of these. In many states, jails in large cities house more persons with serious mental illness than can be found in state mental health facilities. A principal reason for this expansion of persons with mental illness in the criminal justice system stems from inadequate resources at the community and state levels for public mental health care. Although some persons with mental illness commit serious crimes, often individuals with mental illness are arrested for an array of nonviolent offenses such as trespassing, loitering, minor drug offenses, and similar crimes that are related more to the defendant’s mental illness than with criminal intent. Once such an individual is in the criminal justice system, however, a number of forensic issues frequently arise relating to the defendant’s mental state. This entry reviews issues pertaining to serious mental illness at several points in the criminal justice process including apprehension, diversion of offenders, competency to stand trial, competency in other contexts of the criminal process, the insanity defense, and diminished capacity.
Apprehension
Typically, law enforcement officers have substantial discretion at the scene of a possible crime either to make an arrest and transport the alleged perpetrator to jail or—if mental illness is suspected—to apprehend the individual for the purpose of transporting the person to a mental health facility for an evaluation. This type of emergency detention allows law enforcement officers to make an on-the-scene decision to pursue an emergency detention for a mental health evaluation and possible services rather than making an arrest. Often, given inadequate resources for an effective public mental health system, law enforcement officers are the first responders to situations in which a person with mental illness is in crisis. In response, many cities and counties have developed Crisis Intervention Team programs to better assist law enforcement in responding to calls involving possible mental health issues. With Crisis Intervention Team training, officers are better positioned to make decisions at the scene of alleged crimes and to respond to situations involving persons with mental illness who are in crisis. Successful implementation of a Crisis Intervention Team program or the use of specialized mental health deputies can frequently result in avoiding the criminal justice system altogether by diverting the individuals directly into mental health crisis services.
Diversion of Offenders
Many jurisdictions have developed programs and implemented policies to identify—and divert into treatment programs—persons with serious mental illness who have entered the criminal justice system and charged with relatively minor, nonviolent offenses. There are a wide variety of such programs including mental health courts, specialized mental health public defenders offices, and mental health dockets. An important first step toward the success of these programs is a thorough mental health screening at the jail subsequent to the defendant’s arrest. Jail officials should also conduct data searches to identify whether the detainee has received or is then receiving mental health services from the state’s public mental health system. Many alleged offenders with mental illness have previously received mental health services, whereas others will be diagnosed for the first time in the jail. Correspondingly, it is important that the jail provide mental health care, including appropriate medications. If the arrestee with mental illness refuses medication, that raises other legal issues, and many states have a process for allowing the state to seek a court order regarding the administration of medication.
In many of the successful diversion programs, after a defendant is identified as a person with mental illness, the court will appoint defense counsel who has received specialized training in mental illnesses and mental health law. Correspondingly, in jurisdictions that operate mental health courts or specialized mental health dockets, the presiding judges undertake a central and critical role. As with other specialized courts such as drug courts and veterans’ courts, the judge is not strictly operating in a traditional, adjudicatory role. Rather, the judge facilitates regular status sessions that include all the key players: defendant, prosecutor, defense counsel, and members of the treatment team. Although there are many variations among jurisdictions that employ specialized mental health courts or dockets, typically participants volunteer for the program and agree to participate in outpatient mental health services for an extended period (including agreeing to remain compliant with prescribed medications). In exchange for participation, either all charges will be dropped or the court will defer adjudication contingent on successful completion of the prescribed program. Perhaps the most important aspect leading to success in these programs is the active participation of the presiding judge. At the regular status sessions, the judge typically inquires about matters such as whether the defendant has attended scheduled outpatient appointments and has been taking prescribed medications. These programs have largely contributed to lower recidivism rates and longer periods of engagement in mental health services for the populations served, and it is anticipated that more jurisdictions will develop comparable programs.
Competency to Stand Trial
A defendant must be competent to stand trial. Under the U.S. justice system, this means that the defendant must be able to have a rational as well as factual understanding of the proceedings that are being conducted against the person and be able to consult in a meaningful manner with the person’s attorney with a reasonable degree of rational understanding. It is important to note, however, that a lack of competency is not a defense to the underlying crime but instead is a necessary predicate to allowing criminal proceedings to begin or continue. If there is evidence prior to trial to suggest that the defendant might be incompetent to stand trial due to mental illness or an intellectual disability, the court must order that the defendant undergo a competency evaluation. (Issues with regard to the defendant’s competency can also arise during the course of trial, which will also result in the need for a competency evaluation.) Usually, a competency evaluation is conducted by a psychologist or psychiatrist with appropriate forensic training and experience. Often, experts are preferred or required to have certification or special qualifications in forensics from the American Board of Professional Psychology or the American Board of Psychiatry and Neurology. In addition, most jurisdictions require that the examining expert not be involved in the defendant’s treatment but instead be independent.
As part of a competency examination, the forensic expert is generally tasked with exploring the capacity of the defendant to be able to rationally understand the pending charges and their potential consequences; to converse with counsel about relevant facts and legal strategies; to recognize the various participants in a judicial proceeding and to understand the adversarial nature of the proceedings; and to exhibit appropriate courtroom behavior and to testify, if desired. The forensic examiner also determines whether the defendant has a mental illness or intellectual disability and the degree by which any such disability has a bearing on the defendant’s capacity to communicate with counsel in a meaningful manner and understand the proceedings. In the case of a defendant with mental illness, the forensic expert should also identify whether the defendant is either taking previously prescribed medications or whether appropriate medications are necessary to ameliorate the symptoms of the defendant’s mental illness to permit a restoration to competency. In most jurisdictions, statements made by the defendant during the competency evaluation are generally not admissible in later court proceedings except for any hearing or trial on the question of the defendant’s competency to stand trial or in other situations in which the defense first introduces evidence regarding the defendant’s mental state.
Upon concluding the examination, the forensic expert prepares a detailed report for the court. This report should do more than simply present the expert’s conclusion as to whether or not the defendant is competent to stand trial. Instead, in the report, the expert documents the procedures undertaken during the examination and details clinical observations, findings, and conclusions, along with support for those findings and conclusions. In matters involving a defendant with mental illness or intellectual disability, the report should also document the symptoms and deficits relating to the disability and, in the case of a defendant with mental illness, the likelihood of restoration of competency with appropriate treatment for the symptoms of the illness.
If the defense has also raised an issue regarding the insanity defense, there will need to be one or more forensic evaluations conducted on the question of the defendant’s sanity at the time of the events that resulted in criminal charges. Some jurisdictions require that different forensic experts be appointed to conduct the competency and insanity examinations. In other states, the court may initially appoint the same expert to conduct both the competency examination and the insanity examination. If the expert concludes that the defendant is competent to stand trial, then the expert may proceed to examine the defendant with regard to insanity. If, however, the examiner concludes that the defendant is not competent to stand trial, the expert may not continue with an examination on the question of the defendant’s sanity. This is critical because once there has been a determination that the defendant is not presently competent, anything further that might be shared with the examining forensic expert would be suspect and likely unreliable.
Following the competency evaluation and upon the defendant’s return to the court, the court will generally proceed with competency proceedings. In most jurisdictions, the court will conduct a competency hearing without a jury; however, some jurisdictions allow a defendant to demand a jury trial solely on the question of competency. In such a case, it cannot be the same jury that will determine guilt or innocence of the underlying criminal charges because the focus is solely on the defendant’s competency to stand trial. If the court concludes that the defendant is incompetent to stand trial, then the court will order that the defendant be transported from the jail to a mental health facility for competency restoration treatment. For nonviolent offenses, many jurisdictions also provide an option for outpatient competency restoration treatment. Upon restoration of a defendant’s competency, the defendant will be returned to the court’s jurisdiction and the criminal proceedings may resume (whether that is a trial or the entry of a guilty plea). A frequent problem in many jurisdictions, however, is that defendants with mental illness are restored to competency at a mental health facility (often with medication treatment) but then relapse upon returning to the local jail and awaiting trial. Many times, there can be a lack of continuity of care after the defendant’s return to the jail and during the time lag before the criminal proceedings resume. This raises the prospect that the defendant will again be incompetent to proceed to trial, and additional competency evaluations and proceedings will be necessary.
Competency in Other Contexts of the Criminal Process
In addition to competency to stand trial, a criminal defendant’s competency is relevant in several other contexts in the criminal justice system. First, a defendant must be competent to plead guilty to criminal charges. This is significant because over 90% of all criminal prosecutions in the United States are resolved by plea agreements. If a defendant is incompetent to enter a guilty plea, the adjudication may be subject to later challenge. Accordingly, it is important that a defendant with mental illness who is in need of treatment receive appropriate services, including necessary medications, to ensure that the symptoms of the defendant’s mental illness have stabilized and that the defendant not only is competent to stand trial but also is capable of agreeing—competently—to any guilty plea.
Second, a defendant must be competent to exercise a choice to waive the presence of counsel and to proceed to trial without representation. If the defendant is incompetent to make such a critical decision, but the court nonetheless allows the trial to proceed in the absence of defense counsel, the resulting trial and its outcome may be subject to reversal.
Finally, a defendant who has been adjudicated guilty of a capital crime and who faces the death penalty must be competent to be executed. A defendant on death row who has a serious mental illness might become incompetent, particularly if the defendant’s mental illness is not being treated. Ethical issues can arise for both forensic psychiatrists and attorneys in such a situation. The psychiatrist will recognize that medication is appropriate to treat the symptoms of the person’s mental illness, but that the treatment will likely result in restoring the defendant’s competency to then be executed. Can that doctor ethically support a state’s effort to order forced medication in such situation? The defendant’s counsel will also likely recognize that medication is in the defendant’s best interest with regard to treating the symptoms of the individual’s illness but ethically must oppose attempts by the state to order forced medication because of the likely restoration of competency for execution. One state, Maryland, has enacted legislation to require the courts to commute the death sentence in such a situation to life in prison without the possibility of parole.
Insanity Defense and Diminished Capacity
Insanity Defense
Most states permit a defendant to plead and attempt to prove legal insanity as a defense to crimes. The formulations of the insanity defense vary, however, among these states.
Many jurisdictions require the defendant to prove that because of mental illness or intellectual disability, the defendant should not be found guilty of the charged crime because the defendant did not know or appreciate that the conduct resulting in the criminal charges was wrong—a cognitive test. Other states also allow juries to make a volitional inquiry. In those states, the defendant can succeed with the defense by showing that because of mental illness or intellectual disability, the defendant lacked the capacity either to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of the law.
Contrary to popular myth, the insanity defense is not raised frequently, and it is relatively rarely successful. It is invoked far less commonly than issues regarding a defendant’s competency to stand trial, yet when it is raised in a high-profile case, there is often significant publicity. For example, following the much-publicized insanity acquittal of John Hinckley Jr. for the attempted assassination of President Ronald Reagan in 1981, many state legislatures and the U.S. Congress enacted laws that narrowed the scope of their respective insanity defenses.
Unlike other defenses to crimes, such as selfdefense, an insanity acquittal does not typically result in the defendant’s leaving the courtroom as a free person. Instead, there are usually follow-up judicial proceedings that lead to long-term, courtordered hospitalization for mental health services, with periodic judicial review of the commitments.
In general, defense counsel will typically only raise the insanity defense in cases involving very serious crimes. This is due in part because for lesser offenses, plea agreements can lead to comparably shorter sentences without the uncertainty of long-term hospitalization following an insanity acquittal. Moreover, raising the insanity defense can be an expensive proposition given that testimony from forensic psychologists or psychiatrists is critical to informing and persuading the jury about the defendant’s mental illness and its impact on the defendant’s cognitive state at the time of the events in question. At times, however, the defense can be raised successfully when it is not vigorously opposed by the prosecutors, often when they have reached a conclusion that long-term hospitalization serves the ends of justice, as opposed to lengthy incarceration.
Diminished Capacity
Related to the insanity defense and recognized in some states is the defensive theory of diminished capacity. Under this defense, a defendant is allowed to introduce evidence regarding the defendant’s mental state at the time of the events for which the charges are pending to negate the mens rea necessary for the state to obtain a conviction. For example, suppose that a defendant intentionally fires a gun at a police officer but misses. The state then prosecutes the defendant for the crime of attempted murder, which among its elements requires the state to prove that the defendant intended to kill the victim. But, suppose that due to the symptoms of the defendant’s mental illness, the defendant believed that he was shooting at a zombie. In such a case, the evidence could be introduced under a diminished capacity defense as an attempt to negate or disprove that the defendant had the requisite mental state of intent to kill another person. Some states do not allow such a defensive theory, however, and require any type of evidence relating to mental illness to be introduced as part of pleading and proving an insanity defense. In contrast, however, in those states that do not provide for an insanity defense, the ability of a defendant to introduce mental state evidence to negate the mens rea necessary to prove a crime is nonetheless constitutionally required.
References:
- Bonnie, R., Jeffries, J., & Low, P. (2008). A case study in the insanity defense: The trial of John W. Hinckley, Jr. (3rd ed.). New York, NY: Foundation Press.
- Earley, P. (2006). Crazy: A Father’s search through America’s mental health madness. New York, NY: G. P. Putnam’s Sons.
- Perlin, M., & Cucolo, H. (2016). Mental disability law: Civil and criminal (3rd ed.; Vol. 3). New Providence, NJ: LexisNexis.
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