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Legal process on mental illness isn't yet where it should be

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Courts nationally began in the mid-1990s to focus on mental illness and how the judiciary could fine-tune what it does to better address that issue.

But many within the Hoosier legal community say that the criminal justice system hasn't gone far enough in the past decade, and both the courts and society are a long way from where they need to be on addressing mental illness.

The inadequacy of the legal process to cope with mental-health issues has come up as recently as March during a statewide summit by the National Alliance on Mental Illness Indiana, but it's a theme echoed throughout the years by lawmakers trying to tackle the problem, judges trying to handle it in the trenches, and corrections officials combating the consequences once people are behind bars.

In ruling on a mental competency case last year, Indiana Court of Appeals Judge Paul Mathias wrote that he believes "our current criminal justice procedures are inadequate to consider and resolve issues presented by defendants suffering from long-term or permanent mental illness."

That case involved a man who appealed a Marion Superior judge's denial of his motion to dismiss an attempted murder and aggravated battery charges against him after a determination that he was incompetent to stand trial. The man had been committed to the Indiana Department of Mental Health after that finding, and the record later delved into his past diagnosis of receptive expressive language disorder resulting from a traumatic brain injury as a child. Doctors determined he wouldn't regain competency anytime soon, civil commitment proceedings began, and Ahmed Habibzadah moved to have the charges dismissed. Marion Superior Judge Tanya Walton Pratt determined the court didn't have the authority to dismiss those charges and that it would be premature to do so because of a possibility Habibzadah might someday become competent.

The appellate court unanimously affirmed Judge Pratt's decision, but Judge Mathias wrote separately to expand on the legal system's handling of defendant mental-health issues.

"I write separately to highlight the issues raised in this case regarding the dismissal of charges against a defendant who has been civilly committed because he is mentally incompetent to stand trial," the judge wrote. "Our criminal justice system has a mechanism to deal with temporary incompetence as it pertains to criminal culpability, or scienter, but fails miserably when faced with the likely long-term or permanent mental illness of a criminal defendant."

The appellate case highlighted an issue confronted regularly by the entire legal system inside and outside the courtroom, one that has spawned legislative reforms and specialized courts to better address those with mental-health needs.

About two dozen attorneys attended the recent NAMI summit, said Kellie Meyer, criminal justice director. Feedback showed attendees felt informed about how misaligned the mental-health focus is within the criminal justice system, and that there's still much to be done to get vulnerable people the help they need.

"We're not just putting criminals out there but are helping people who need those services instead of prison," she said.

The U.S. Department of Justice estimates that more than 330,000 of the nation's 2.2 million inmates are mentally ill, meaning that corrections officials must deal with those issues after the legal system puts individuals behind bars. Nationally, mental-health courts have been used since the mid '90s. Marion County is believed to have established the first, with the 1996 creation of the Psychiatric Assertive Identification Referral/Response (PAIR) program that used a pretrial, post-booked diversion system for mentally ill offenders. Others followed suit with more formal specialized courts, and the National Center for State Courts reports that there are dozens across the country.

Indiana has about six programs, though some others have more informal programs in place or are being developed. The state doesn't yet certify those as it does with other problem-solving courts, but that changes July 1 because of a new law approved by the Indiana General Assembly this year. It allows for the expansion of these problem-solving courts, and allows the state judiciary to certify courts specializing in mental-health issues in the same way it currently does with drug and re-entry courts.

Clark Superior Judge Dan Moore operates a mental-health court and hopes to work more with police in the pretrial process about critical response in committing those with mental-health issues for 24 hours after the initial detention period finishes.

"We need to be able to better develop programs and ID mental-health patients police encounter better than we do now," he said. "We're trying to cut some new ground here because sometimes this isn't a criminal issue. Unfortunately, we're not there yet."

Allen Superior Judge David Avery has been hosting a more informal program that allows for involuntary civil commitments for mentally ill defendants who aren't able to get the needed help through drug and re-entry courts. The court works with the mental health-focused PARK Center and every Monday afternoon conducts hearings about ongoing issues, counseling, medication being taken, or other therapeutic necessities, Judge Avery said. Through the years, some misdemeanor defendants have seen other courts include the mental-health evaluations as part of a sentence, mandating that they get evaluated by the PARK Center and then are brought into Judge Avery's court for a status hearing.

"Instead of using jail as a psych ward, we've done this and have been successful in keeping them within the treatment plans while the offense or sentence hangs over them," the judge said. "A high percentage of these individuals in our criminal justice system have mental-health issues, and I'm not sure all can be dealt with in mental-health courts or these specific settings. Some might still need to be incarcerated. But at least we have the option to try something that might work."

In the past 15 years, the state has also taken significant steps in improving the legal process for defendants with mental-health concerns. The late Sen. Anita Bowser, D-Michigan City, was a champion for the mentally ill and through the years had been a part of changes on this front. In recent years, she'd pushed to limit the death penalty in Indiana for those who are mentally ill. While that didn't materialize before her death in March 2007, her colleagues formed a commission in her honor to study the issue. Discussions are still ongoing about the definition of "mentally ill" for court purposes.

Despite those efforts and ongoing discussions and changes, those attending the recent summit - and Judge Mathias' point in the Habibzadah ruling - say that despite the progress we aren't yet where we need to be.

"Our criminal justice system needs an earlier and intervening procedure to determine competency retroactively to the time of the alleged crime. 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 section 35-36-2-1," the judge wrote. "In either case, the commitment proceedings provided for in Indiana Code 35-36-2-4 would both protect society and best care for the defendant involved."

Whether such a result can be achieved through the Indiana Supreme Court rulemaking process or the Indiana General Assembly's legislative process, Judge Mathias said it's "time for the truly, longterm, incompetent criminal defendants to have an earlier recognition of their illnesses long before a case might get to trial or even appeal.

"Such a procedure convened soon after arrest, rather than years later when stale evidence and dim or non-existent memories are all that are left over, or never, would best serve society and the defendant," he wrote.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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