Mentally Disordered Offenders

Much deviant or rule-breaking conduct falls within the purview of both the mental health and criminal justice systems. An assault, for example, may be treated as a misdemeanor, a symptom of mental disorder, or both. Serious crime may raise similar issues. A person who kills on the basis of a delusion may be seen as a candidate for criminal justice processing, during which an insanity defense may be raised and won. The same person may be viewed as primarily in need of mental health care and diverted from the criminal justice system.

Pre-arrest decision-making. A police officer is often the individual who decides whether a rule-breaker should be taken to a hospital or a jail. Some major mental disorder manifests itself as disorderly or frightening public behavior and consequently comes to the attention of the police. The mentally disordered person may also behave violently or disruptively in the home, again occasioning intervention. The police are quite expert at making quick determinations that a citizen is suffering from a mental disorder, but the decision to take a person to a hospital instead of a jail depends on a complex of factors going far beyond the simple assessment of whether mental disorder is present. Such factors include the seriousness of the criminal behavior, the seriousness of the perceived mental disorder (including whether the person has behaved self-injuriously or extremely bizarrely), the police officer's perception of the person's degree of responsibility for the behavior, the availability of cooperative psychiatric services, the desires of the family (if any), and the convenience of the officer, such as whether the officer will have to appear in court if the person is arrested.

A major factor that may influence the police officer's decision to arrest or commit is the existing criteria for involuntary commitment in the specific jurisdiction. At one time such criteria were quite broad, allowing hospitalization on a showing of mental disorder alone and consequent "need for treatment." In the late 1960s and throughout the 1970s, legislative reform and court decisions—the latter often based on constitutional principles—largely replaced vague, broad mental health standards with apparently narrower commitment criteria focused on dangerousness to self or others, as evidenced by a recent overt act or threat. Moreover, the terms of potential civil commitment were limited. Although the newer standards provided greater protection of liberty for people with disorders, at least in theory, mental health professionals criticized the new laws because they thought that they threatened to turn hospitals into jails by their criminal-justice-like criteria that focused on danger rather than disorder.

In reaction to these and related criticisms, many commitment laws were broadened somewhat in the late 1980s and 1990s. Nonetheless, concern for civil liberties and the expense of involuntary civil commitment have caused most involuntary civil commitment to be used in emergency situations and with limited terms of confinement for people with severe disorders. Thus, involuntary civil commitment is no longer a viable option either to incapacitate dangerous disordered people for long terms or to hospitalize disordered people whose condition does not present a major psychiatric emergency but who may engage in relatively nondangerous criminal offenses. The difficulty of hospitalizing the latter group has caused many such people to be processed through the criminal justice system. Such so-called criminalization of the mentally disordered has been decried by many because it seems unjust and inhumane to arrest and imprison persons whose nonserious criminal behavior is related to mental disorder and whose primary need is treatment.

These criticisms have merit, but they fail to address important issues. It is not always the case, for example, that disordered persons are not responsible for their behavior. Persons can be both "mad and bad," to use a popular locution, and to the extent that they are bad and responsible, they may fairly be arrested and punished. If treatment is required, it can and should be provided to prisoners. In addition, for all its faults, the criminal justice system provides greater due process protections than the legal protections in the mental health system. Moreover, public hospitals rarely provide fully adequate care and treatment, and hospitalization is not always in the disordered person's best interests.

Disordered prisoners in jail. When a mentally disordered person is arrested and formally charged by the prosecutor, or when a person becomes disordered after entering the criminal justice system, it is unlikely that he or she will be transferred entirely to the mental health system. If a prisoner is or becomes severely disordered in jail while awaiting trial, he or she will usually be treated in the jail itself or placed in the jail hospital ward. The prisoner will be transferred to a mental hospital only if the jail mental health facilities are incapable of providing minimal treatment and safety. Psychotropic medication is the treatment of choice for most people with major mental disorders, especially in the acute stage of disorder, and such medication can be prescribed and administered in jails. Unfortunately, mental health services in almost all jails—both urban and rural—are generally inadequate and inmates do not have access to services other than those provided by the jail authorities.

Incompetence to stand trial and to plead guilty procedures and commitments. A charged prisoner may be temporarily or, in some cases, permanently diverted into the mental health system if there is a question of competence to stand trial or to plead guilty. Due process requires that a criminal defendant must be competent, and it is the duty of the defense counsel, judge, and prosecutor to raise this issue if the defendant's mental condition seems to warrant it. Major mental disorder may produce incompetence, but the latter, which is a legal standard, is distinguishable from disorder itself. Most defendants with mental disorders are not incompetent.

A defendant is considered incompetent to stand trial or to plead guilty if he or she is unable to understand the nature of the proceedings or to assist counsel effectively. Although some commentators believe that pleading guilty requires higher or different competence than standing trial, the Court held in Godinez v. Moran, 509 U.S. 389 (1993) that the same standard of "rational understanding of the proceedings" could be applied for both purposes. A guilty plea must be knowing: the defendant must in fact understand that he or she is waiving constitutional rights, but the standard for judging competence is the same. The proportion of cases in which this issue is considered varies enormously from one jurisdiction to another, even within a state, clearly indicating that the criminal justice system is not uniformly sensitive to the effect of mental disorder on competence to stand trial, and that factors other than the defendant's competence, such as the ready availability of evaluation facilities, play an important role. In general, however, the proportion of felony cases in which competence is questioned appears to be less than 10 percent.

The incompetence issue may be raised at any time before or during trial, but it is usually done shortly after arrest. When the defendant's competence is put at issue, the court will order an evaluation, which is usually performed by a psychiatrist or psychologist. A hearing will then be held to determine whether the defendant is incompetent. According to some studies, the defendant is actually found incompetent in only 25 to 30 percent of such cases.

If the defendant is found to be incompetent, a course of treatment will be ordered whose purpose is to restore the defendant to competence so that he or she can stand trial. Some jurisdictions allow the treatment to take place on an outpatient basis, but most incompetent defendants are committed either to civil hospitals or to hospitals for the criminally insane. The treatment of choice for incompetent defendants, most of whom are psychotic, is psychotropic medication, although some jurisdictions also provide psycho-educational therapy directed specifically at teaching the defendant the skills needed for competence to stand trial.

The U.S. Supreme Court held in Jackson v. Indiana, 406 U.S. 715 (1972), that incompetence to stand trial commitments could only be maintained for a reasonable length of time, and that if the defendant could not be restored to competence sufficiently to stand trial, either release or civil commitment was required. The length of time designated for incompetence commitments varies among jurisdictions, but it tends to be longer than is necessary for its purpose, which is not to "cure" the defendant but simply to restore competence. With proper medication and management, most disordered defendants can be restored to competence within a matter of months.

Although the Jackson decision prohibits lifelong incompetence commitments, defendants can still remain hospitalized for far longer than the few months needed if proper treatment is provided. Unfortunately, incompetence commitments are often made for other than mental health purposes; they may be used to delay proceedings or to incarcerate a defendant so that the prosecution can avoid the cost, strain, or uncertainty of trial. Moreover, hospitals for the criminally insane and other institutions that treat incompetent defendants often do not provide high-quality treatment that would ensure the success of brief incompetence commitments.

An interesting question is whether a defendant committed as incompetent to stand trial may refuse psychotropic medication treatment, which can create potentially unpleasant and serious side effects. It is clear that if such treatment is medically appropriate and there is a compelling reason, such as the defendant posing a danger to self or others, the state may medicate the defendant. Less clear is whether the state may medicate involuntarily solely for the purpose of restoring the defendant's competence in the absence of any other compelling reason. Most states assume and most courts have held that the state's interest in resolving the defendant's guilt outweighs the defendant's liberty interest. In Riggins v. Nevada, 504 U.S. 127 (1992), the Court implied that the state might be able to justify "medically appropriate" involuntary medication if it could not restore a defendant's competence with less intrusive means, but it did not decide the issue.

Another unresolved issue is whether a defendant who is competent only when he or she is being treated with psychotropic medication—socalled synthetic competence or synthetic sanity—may be fairly tried because such medication can alter a person's presentation of self and might give the finder of fact an inaccurate impression of the defendant. In Riggins, the Court held that an overmedicated defendant could not be fairly tried, but it has never decided whether an appropriately medicated defendant could be fairly tried. Courts have divided on this question and at least one Supreme Court Justice has indicated that trying synthetically competent defendants may be unconstitutional.

Sentencing. In jurisdictions that give judges unguided or guided sentencing discretion, mental disorder is a factor traditionally used to argue for a reduced sentence. Many capital sentencing statutes explicitly mention mental abnormality as a mitigating condition and some even use the language of the insanity defense or the extreme emotional disturbance doctrine as the mitigation standard. The logic of such sentencing practices is straightforward. A criminally responsible defendant whose behavior satisfied all the elements of the offense charged, including the mens rea, and who has no affirmative defense, may nonetheless be less responsible because mental abnormality substantially impaired the defendant's rationality.

Mentally disordered prisoners. A disordered offender may have mental health treatment needs after being convicted and sentenced to prison. The U.S. Supreme Court held in Estelle v. Gamble, 429 U.S. 97 (1976), that the state must provide medical services to prisoners that are necessary to avoid "deliberate indifference" to prisoners' serious needs. In fact, mental health services, especially prescription of psychotropic medication, are widely available in state and federal prisons. Data from the 1990s indicate that about 50 percent of state and federal prisoners identified as mentally ill have taken a prescribed medication and about 60 percent have received some form of mental health service. Moreover, there are mental health units in prison hospitals to treat mentally disordered prisoners who cannot be safely treated or remain safely in the general prison population. Although prison mental health services are adequate and generally superior to such services in jail, they are seldom highquality.

On occasion, prison mental health services are inadequate for a disordered inmate and the prison will seek to transfer the inmate to a mental hospital. In Vitek v. Jones, 445 U.S. 480 (1980), the Court held that inmates facing such transfers must be accorded due process protections because transfer to a mental hospital threatens to stigmatize the inmate and to expose the inmate to potentially intrusive forms of forced treatment. The Court held that a prisoner facing such a transfer is entitled to notice and a hearing before an independent administrator at which the inmate may present evidence and cross-examine witnesses called by the state. The prisoner is also entitled to the assistance of a qualified and independent adviser, although not necessarily an attorney. Further, the fact finder must furnish a written statement outlining the evidence relied on and the reason for transferring the inmate. If an inmate is transferred, the inmate may remain in hospital as long as it is necessary, but time in the hospital is credited toward the inmate's sentence. Transferred inmates are returned to the prison when this is indicated.

If an inmate is still disordered at the end of his or her sentence, whether serving time in prison or in hospital, and the state then wishes to involuntarily civilly commit the inmate, equal protection requires the state to use the same commitment standards and procedures it applies to citizens who are not serving a prison term (Baxstrom v. Herold, 383 U.S. 107 (1966). The logic of the Baxstrom case is compelling: At the end of a prison term, a prisoner is entitled to freedom and thus enjoys the same civil status as other free citizens. If the state then decides to deprive the ex-prisoner of liberty and to impose the stigma of involuntary hospitalization, the exprisoner should be entitled to the same protections granted other citizens.

Post-insanity defense commitments. Although incompetence proceedings affect a greater number of mentally disordered offenders, the insanity defense has claimed most of the attention devoted to offenders with mental disorder. Whereas the incompetence to stand trial standard addresses whether the defendant is at present unable to stand trial, the insanity defense standard concerns whether the defendant was mentally disordered and legally insane in the past, at the time of the offense. Thus there is no necessary relation between past and present mental status and between incompetence to stand trial and legal insanity: a defendant who was arguably legally insane at the time of the crime may be either competent or incompetent at the time of trial, and a currently incompetent defendant may not have been mentally disordered at the time of the crime. A defendant can only be tried if the defendant is currently competent, however, even if the insanity defense is raised. In some clear cases the prosecution will accept an insanity plea in order to divert the defendant quickly into a mental health facility.

The Court held in Jones v. United States, 463 U.S. 354 (1983), that if a defendant is acquitted by reason of insanity, the state is permitted automatically to commit the person to a hospital. Such hospitals may be administered by corrections departments or by mental health departments, but acquittees are virtually always committed to secure facilities. The justification for post-acquittal commitment is that an insanity acquittal represents a finding that the person is both dangerous and nonresponsible. Some jurisdictions treat the initial commitment for the purpose of evaluation of continuing dangerousness and nonresponsibility and soon have a hearing about whether the acquittee remains mentally disordered and dangerous and is therefore committable. Despite the possibility that the acquittee may no longer be dangerous or nonresponsible, other jurisdictions treat the insanity acquittal as a finding that commitment is immediately appropriate because dangerousness and nonresponsibility are conclusively presumed to continue. After commitment is authorized, an acquittee is entitled to periodic review of commitment.

The standard term of post-insanity acquittal commitment is indefinite because its primary purpose is protection of society from people who are both dangerous and nonresponsible, conditions that have no necessary limit. The term of post-insanity acquittal commitment is not limited by proportionality related to a guilty offender's deserved punishment because the acquittee was found not guilty, not responsible. The Court upheld such indefinite commitments in Jones, even for defendants who are acquitted for relatively nonserious crimes and who thus seem to pose little danger to the community.

In Foucha v. Louisiana, 504 U.S. 71 (1992), a closely divided Court held that once an acquittee was no longer mentally disordered or no longer dangerous, the justification for the commitment ends and the acquittee must be released. This holding makes great sense. If the acquittee is no longer dangerous, confinement for social safety is not required; if the acquittee is no longer suffering from mental disorder, the acquittee is then indistinguishable from any citizen who may be dangerous and responsible and hospital treatment is unnecessary. On the other hand, a vigorous dissent by four Justices seemed to suggest that although the acquittee had been found non-responsible, a post-insanity acquittal commitment was a genuinely criminal commitment because the state was able to prove that the defendant committed the crime. Thus, commitment could continue indefinitely as long as the acquittee was dangerous, even if the acquittee no longer suffered from a mental disorder.

Insanity acquittees should be treated to permit release in the shortest possible time, but as in the case of incompetence commitments, adequate treatment is rarely provided and commitments often last for long periods. Once again, as in incompetence cases, lengthy commitments are rarely necessary or optimal on mental health grounds for insanity acquittees, few of whom are severely psychotic and disabled by the time of trial. Long-term hospitalization is not necessary for moderately disabled persons, and short-term hospitalization usually suffices for the treatment of acute serious disorders. Indeed, many insanity acquittees could benefit best from outpatient treatment, which is available in only a few jurisdictions. Moreover, it is generally agreed that "dangerousness" is not a psychiatric condition per se that mental health professionals are competent to alleviate.

Some claim that insanity acquittees are committed to hospitals because society still wishes to "punish" them even though they have been acquitted. There is support for this claim: evidence from some jurisdictions shows that the length of insanity acquittal commitments is positively correlated with the seriousness of the crime charged, rather than with the acquittee's psychiatric condition, and insanity acquittees in general appear—although there are some problems with these data—to remain in the hospital about the same length of time as they would have been imprisoned for the crime charged. But custodial incarceration and "punishment" represent a misuse of mental health resources and professionals. Moreover, the integrity of mental health law and mental health care is undercut when treatment is not the primary focus of the commitment. Finally, a number of studies indicate that, contrary to popular belief, insanity acquittees are not particularly dangerous as a class. Even the custodial function of insanity acquittal commitments may be largely superfluous.

Quasi-criminal commitments. Some jurisdictions provide for mental health–related commitments for classes of offenders, such as socalled mentally abnormal sexually violent predators, who may be criminally responsible, but who are considered especially dangerous as a result of mental abnormality and who are thought to require specialized treatment. The primary goal of such commitments is undoubtedly public safety. These commitments were once common, but in response to intense criticism that such commitments were unfair and ineffective, they were largely abandoned in the 1960s by legislative repeal or lack of use. But motivated by continuing fears of alleged sexual predators and high-profile cases in which sexual offenders released from prison have committed horrendous offenses, since 1990 a substantial number of jurisdictions created new forms of commitment to respond to the danger some sexual offenders present.

Often termed "quasi-criminal" because they are a hybrid of criminal and mental health commitments, these commitments are usually triggered by conviction for a sexual offense and commitment proceedings begin after the sexual offender has completed his prison term. The criteria for commitment are commonly that the offender suffers from a mental abnormality and that the abnormality renders the offender a danger to society. If an offender is found to be a mentally abnormal sexual predator, commitment is for an indefinite term with periodic review. Modern quasi-criminal commitment laws do provide substantial procedural protections, including most of those required for criminal conviction, such as the right to counsel and proof beyond a reasonable doubt.

The Supreme Court upheld the constitutionality of such commitments in Kansas v. Hendricks, 521 U.S. 346 (1997). The Court reasoned that these commitments are not criminal and punitive. Rather, they are akin to ordinary involuntary commitment and similarly justifiable because the alleged predator poses a risk to the public and the necessary finding of mental abnormality implies both that the alleged sexual predator is unable to control his dangerous sexual behavior and is not responsible. In Seling v. Young, 2001 WL 37676 (U.S.), the Court reaffirmed that such statutes are non-punitive and therefore civil in nature, holding that an inmate could not obtain release on the ground that the commitment was punitive as applied because proper treatment and conditions of confinement were not being provided to him. The Court did say, however, that inmates may have state law and federal causes of action to determine if they are being treated in accord with state law and federal law and to provide necessary remedies. Citing Foucha and Jackson, the Court also reaffirmed that due process requires that the conditions and duration of sexual predator commitments must bear a reasonable relation to the purpose of the confinement, implying that treatment must be provided if treatment is at least one purpose of the commitment.

There were many problems with the reasoning in Hendricks. It is paradoxical to claim that a sexually violent predator is sufficiently responsible to deserve the stigma and punishment of criminal conviction and punishment, but is not sufficiently responsible to be permitted the usual freedom from involuntary civil commitment that even predictably dangerous but responsible agents retain. Every form of sexual aberration is not necessarily mental disorder or a symptom of it, and disordered sex offenders seldom manifest a psychosis or a severe behavioral disorder other than their offending sexual proclivities. If a state seriously believes that a mental abnormality is sufficient to justify potentially lifelong involuntary commitment, then such an abnormality should surely preclude criminal responsibility. The Court also did not recognize that the criteria for the commitment, as defined by Kansas, were circular and overbroad. Indeed, the definitions of mental abnormality and dangerousness that the Court approved were sufficiently broad to permit commitment of virtually any offender as a dangerous predator with only minimal redrafting of the criteria. Finally, the Court assumed without argument that sexual predators cannot control their conduct, although such an assumption is subject to substantial conceptual and empirical criticism.

The public safety motivation behind sexual predator commitments is understandable. Some sexual offenders are indeed very dangerous. Penal incarceration is typically limited and thus many such predators may be released to prey on the community. Usually, however, custodial confinement in our legal order is justified only by criminal desert or by nonresponsible dangerousness. This leaves a gap because there is no means preventively to confine very dangerous but responsible people who have committed no crime or who have committed a crime but served their sentences and must be released. Quasi-criminal commitments attempt to fill this gap by requiring that predators be deemed abnormal and not responsible, which justifies permitting confinement for a longer period than ordinary criminal sentences, but the nonresponsibility assumption is unwarranted. Further, available evidence demonstrates that mental health treatment holds little promise of altering offensive sexual behavior and little genuine treatment is offered to committed predators. Seling describes various challenges to the conditions of sexual predator commitments in the lower courts that demonstrated that these conditions were unconstitutional and required improvement and monitoring to ensure that they met constitutional standards. Thus, these commitments appear simply to be an attempt to evade traditional constraints on the state's ability to confine citizens. If the dangers posed by sex offenders are perceived to be especially threatening, a logical response would be lengthier criminal punishment. Indeed, most of the nation's major mental health organizations argued that these quasi-criminal commitments are unwise and should be unconstitutional because they are a devious misuse of the mental health system to achieve essentially non-mental-health goals.

Competence to be sentenced and executed. A convicted defendant may become disordered in the interim between conviction and sentencing and, consequently, may also become incompetent to be sentenced because the defendant does not understand the nature of the proceedings. This rarely occurs, but the state must defer sentencing until the defendant is restored to competence. Virtually always, such defendants are psychotic and the treatment of choice would be psychotropic medication. Because such incompetence is rare, few decisions have considered the broader issues raised, such as whether such defendants may be forcibly medicated. Almost certainly, the same considerations that apply to incompetence to stand trial commitments would apply in this context.

More important, the Court held in Ford v. Wainwright, 477 U.S. 399 (1986) that it is unconstitutional to execute a prisoner who is incompetent because the prisoner does not understand the nature of the death penalty or why it is being imposed. The Court provided no consistent rationale for its decision, but it pointed to the uniform common law practice of barring execution of the insane. Most prisoners found incompetent to be executed will, again, be suffering from a psychotic disorder for which psychotropic medication will be the treatment of choice—but may the state forcibly medicate the prisoner so that he may be executed? The Court has not resolved this issue and at least one state has concluded that it is constitutionally impermissible forcibly to medicate an incompetent inmate for the purpose of executing that inmate. The problem has also divided mental health professionals, who disagree about whether it is ethical to offer healing services that will ultimately be used to permit the intentional killing of the patient.