ILNews

COA: 'Serious deficiency' in treating mentally ill

Jennifer Nelson
January 1, 2009
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A panel of the Indiana Court of Appeals used an opinion today to highlight what it considered a "serious deficiency" in the statutes for the treatment of developmentally disabled and mentally ill people in the state's criminal courts.

"Simply said, the Indiana statutory framework allows courts to recognize the mental illness of a criminal defendant only in terms of guilt for the crime alleged, rather than as a condition that prevents the defendant's ability to form a punishable intention to commit the crime alleged in the first instance," wrote Judge Paul Mathias.

The judges examined the state's statutes regarding people who lack sufficient comprehension to stand trial for a criminal offense in Steven Thomas and Derrick Dausman v. Anne Waltermann Murphy, in her official capacity as secretary of the Indiana Family and Social Services Administration, et al., No. 49A02-0812-CV-1140. Steven Thomas and Derrick Dausman appealed the entry of summary judgment for Anne Waltermann Murphy, as secretary of the Family and Social Services Administration, and Gina Eckhart, director of the Division of Mental Health and Addiction, in their request for a preliminary injunction preventing the DMHA from placing criminal defendants who lack sufficient comprehension to stand trial in a state institution when medical and psychiatric treatment professionals recommend placement in a less restrictive setting. The trial court found the issues weren't ripe for determination.

Thomas and Dausman are developmentally disabled individuals charged with child molestation and found to possess insufficient comprehension to stand trial. Both had medical professionals recommend they be treated on an outpatient basis, but their treatment teams didn't make that recommendation and they were committed to the DMHA based on Indiana Code Chapter 35-36-3. Dausman was released on bond in April 2009 after the trial court found the state failed to establish the statutory criteria for regular commitment had been met. Thomas may never be released because he may never be found competent to stand trial.

Criminal defendants found incompetent to stand trial are committed to the DMHA for competency restoration services; DMHA doesn't provide or contract for outpatient or community-based placement alternatives. It believes community-based services wouldn't provide adequate supervision or monitoring for those charged with crimes, and those services would require more resources and funding than the FSSA and DMHA have available.

The appellate court agreed that Thomas and Dausman's issues weren't ripe for adjudication. Dausman has since been released on bond and he failed to show he suffered any hardship because of the application of the DMHA's policy regarding incompetent defendants. Thomas' claims were based on the possibility that he would be able to participate in community-based treatment if and when his treatment team would make that recommendation. His claims were abstract and lack factual basis.

The judges also noted Dausman's situation highlights problems in the treatment of the mentally ill and developmentally disabled in criminal courts. Current law doesn't have a procedure to determine whether Dausman had the necessary mens rea at the time of the alleged molestation to commit the offense, Judge Mathias wrote. The DMHA interprets the statute mandating competency restoration services to extend to those who will never be able to reach even a minimal level of competency.

"Our criminal justice system needs an earlier and intervening procedure to determine competency retroactively to the time of the alleged crime," he wrote. "Perhaps we as a society need to consider the concept of a defendant being unchargeable because of mental illness under Indiana Code section 35-41-3-6, and not just guilty but mentally ill under Indiana Code chapter 35-36-2."
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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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