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When I began the practice of law some 38 years ago, a defendant’s impaired mental functioning was formally addressed in the criminal justice system almost exclusively in terms of competency to stand trial, reduced criminal responsibility by way of an insanity defense and, in some jurisdictions, a diminished capacity defense. Other degrees of impairment were addressed informally and with little consistency in the charging or sentencing decisions. Through my own experiences with presenting evidence of my client’s mental impairment to a jury, I’ve seen firsthand the skepticism that many in the jury pool have about diminishing someone’s responsibility for a deplorable act because of a condition that often manifests itself through apparently antisocial behavior. Those of us who have engaged in jury selection in cases where the mental health of the accused was an issue are well aware that a substantial portion of the public simply denies that mental health issues are real. A sizable portion distrusts the opinions of mental health professionals and believes that mental conditions can be and often are feigned. Playing to this skepticism, prosecutors seeking to discredit a mental impairment defense find it easy to attack the seemingly subjective nature of testing used to diagnose and gauge the severity of mental disorders.

The skepticism of the rank and file finds its way into the statutes that define the relevance of evidence of mental impairment in criminal trials. Four states — Idaho, Kansas, Montana, and Utah — do not provide for a verdict of not guilty by reason of insanity.¹ Forty-five states are almost evenly split between the M’Naghten Rule (lacks ability to distinguish between right and wrong) and the broader Model Penal Code-based rule (lacks capacity to appreciate the criminality of the act or to conform to the law).² New Hampshire uses the more liberal Durham Rule (“A person who is insane at the time he acts is not criminally responsible for his conduct.”).³ 

While states may argue over the particulars of the insanity defense or whether it should be available at all, the impact of mental impairment on those subjected to the criminal justice system is undeniable. Statistics showing what percentage of those incarcerated suffer from some sort of mental disorder vary widely depending upon the measures used to define mental disorder. A Bureau of Justice Statistics (BJA) report released in September 2006 estimated that 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of local jail inmates had “mental health problems” as measured by a recent history or symptoms of a “mental health problem” occurring within the last 12 months.⁴ Other reports using a much more restrictive measure to define which individuals suffer from some sort of mental impairment (for example, only counting those who have had at least an overnight stay in a mental hospital) have found much lower percentages.⁵ However, the BJA method’s broad reach is appropriate if the data is to be used not just for counting, but also to determine how issues raised by mental impairment should be addressed and the resources necessary to do so. Whether a person’s disorder has been addressed by hospitalization or other historical treatment history definitions doesn’t take into account individuals who have conditions that haven’t been diagnosed properly. Nor do those measures identify individuals who have conditions not requiring hospitalization but which, nonetheless, contributed to their legal issues and will likely result in future arrests if left unaddressed. And, of course, those on probation with mental impairment must also be addressed. The statistics are not as readily available to quantify the numbers of individuals in that category.⁶ 

In sharp contrast, the BJA report estimated that 11 percent of the U.S. population age 18 or older met criteria for “mental health disorders,” based on data in the National Epidemiologic Survey on Alcohol and Related Conditions, 2001-2002.⁷ The report also noted that female inmates had much higher rates of mental disorders than male inmates. In state prisons, an estimated 73 percent of females compared to 55 percent of males suffered from some type of mental impairment. In federal prisons, the rate was 61 percent for females compared to 44 percent for males. In local jails, 75 percent of females as opposed to 63 percent of male inmates suffered from “mental health problems” as defined by the BJA report.

While there may be much dispute over which, if any, standard should be applied to determining whether a mentally impaired person should be held criminally responsible for his acts, it is safe to assume that all jurisdictions would agree that a reduction in a recidivism rate would be a good thing. Putting aside skepticism about whether mental disorders can be accurately diagnosed or whether a person might feign a disorder to avoid responsibility, the raw numbers tell a simple story. If incarcerated individuals determined to have mental health issues are subjected to an individualized treatment plan prior to release and further are involved with a program utilizing an interdisciplinary, team approach to guide them through the re-entry process, recidivism is dramatically reduced.⁸ 

One such program studied was the Mentally Ill Offender Community Transition Program (MIOCTP) implemented in 1998 in Washington State. The program involves providing seriously mentally ill inmates with proper treatment and stabilization while in prison so that they can continue with this stability upon release. There is also a post-release component that involves a community-based team that includes a mental health case manager, psychiatrist, nurse practitioner, registered nurse, substance abuse counselor, community correction officer, and residential house manager. The team works to make sure that the released person continues with medications and psychotherapy and has access to housing and other basic services. A study of the program revealed that in a two-year follow-up period its participants showed a recidivism rate of 19 percent as opposed to 42 percent for a matched control group.⁹ 

While MIOCTP involves only inmates diagnosed with serious mental disorders, there is no reason to believe that similar programs tailored to less serious disorders would be less effective. The lesson to be learned from the studies is that if a jurisdiction wants to reduce the number of criminal acts, and consequently, the number of individuals incarcerated for those acts, it must dedicate significant resources to treatment of individuals with mental disorders.

As criminal defense attorneys, we must prepare ourselves to properly deal with clients with mental disabilities not only in the courtroom, but also in pretrial release decisions, diversion court referrals, and sentencing alternatives. Understanding a client’s diagnosis is essential to understanding the client’s behavior and needs. I invite you to attend NACDL’s seminar, “The Science of the Mind: Litigating Mental Health in Criminal Cases,” in Austin, Texas, February 17-20, 2016. The agenda includes a broad array of topics relating to representation of clients with mental disorders. As usual, our CLE institute has assembled an outstanding lineup of topics and speakers.

Notes

1. See K. Kim, M. Becker-Cohen & M. Serakos, The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis 20 (2015).
2. Id. at 19-20.
3. N.H. Rev. Stat. Ann. § 628:2.
4. D. James & L. Glaze, Bureau of Justice Statistics Special Report, Mental Health Problems of Prison and Jail Inmates (2006) [hereinafter BJA Report].
5. See C. Sarteschi, Mentally Ill Offenders Involved With the U.S. Criminal Justice System: A Synthesis, SAGE Open, at 2-3 (2013), available at  http://sgo.sagepub.com/content/3/3/2158244013497029.
6. Id. at 3.
7. BJA Report, supra note 4, at 3.
8. See K. Kim et al., supra note 1, at 26-33.
9. Seeid. at 30-31.

About the Author

A certified criminal law specialist, E.G. “Gerry” Morris has been practicing criminal defense law for 37 years. His practice focuses primarily on trials in state and federal courts, but he also handles state and federal appeals as well as post-judgment actions. He is a frequent lecturer at continuing legal education programs.

E.G. Morris
Law Office of E.G. Morris
2202 Lake Austin Blvd.
Austin, TX 78703
512-478-0758
Fax 877-497-8347
egm@egmlaw.com

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