ENDING DISPARITIES AND ACHIEVING JUSTICE FOR INDIVIDUALS WITH MENTAL DISABILITIES.

• Author: Shea, Sheila E.

INTRODUCTION

The intersection of crime and mental disabilities is a topic of intense public scrutiny and concern. (1) It is well known that the widespread closure of psychiatric hospitals led to an increase in the arrest and incarceration of individuals with mental illness. (2) Nationally, as the number of state hospital beds that remain open "has fallen to its lowest level on record,... mentally ill individuals inside and outside the criminal justice system" compete for scarce resources in "a bed shell game with life-and-death implications." (3) Against this backdrop, attorneys who practice in New York encounter statutory schemes governing the adjudication and retention of incapacitated defendants and those determined to not be responsible because of "mental disease or defect" (4) that are confounding even to the most experienced counsel. Acquiring proficiency in this discrete area of law must be coupled with awareness that defendants with mental disabilities invariably confront widespread societal prejudices, myths, and stereotypes regarding their circumstances, such as that those who invoke mental status defenses are malingering or inherently dangerous. (5)

"The [American] public's outrage [in 1981] over a jurisprudential system that could allow a defendant who shot an American President on national television to plead 'not guilty' became a 'river of fury' after the jury's verdict was announced." (6) The conditional release of John Hinckley from St. Elizabeth's Hospital on September 10, 2016, thirty-five years after he shot former President Ronald Regan and three others, is a watershed moment that has caused renewed public criticism of the insanity defense. (7)

Criminal defendants with mental disabilities have been "deprived of treatment, discriminated against, [and] mistreated." (8) They have also been subjected to over-punishment because of the harms they endure while incarcerated. (9) The common view that dangerous propensities are associated with mental illness and that future risk can be predicted is not evidence-based. (10)

This article will review the nature of mental disabilities and their prevalence in the criminal justice system, and will introduce fundamental concepts regarding the defense of individuals with mental disabilities. New York State statutes governing the retention, care, and treatment of incapacitated defendants and those found not guilty by reason of insanity will be explored in depth along with proposals for chapter amendments to this state's Criminal Procedure Law. Theory and practice are examined together toward the goal of ending disparities in outcomes for individuals with mental disabilities in the criminal justice system. This article's conclusion is that miscarriages of justice for those with mental disabilities can be avoided by reform of statutory schemes, education of the bench and bar regarding the nature and consequences of mental disabilities, and by embracing concepts of therapeutic justice not yet integrated into our criminal justice system. (11)

1. THE NATURE OF MENTAL DISABILITIES

   Crucial to achieving justice for any person alleged to be mentally disabled and subject to criminal prosecution is an understanding of the distinctions between psychiatric illnesses, developmental disabilities, and neurological injuries or disorders, all of which can impede a person's capacity. The Diagnostic and Statistical Manual of Mental Disorders ("DSM"), (12) provides a common nomenclature for identifying categories of mental disorders and their diagnostic criteria. "Because impairments, abilities and disabilities vary widely within diagnostic category[, the] assignment of a particular diagnosis does not imply a specific level of impairment or disability [that may manifest itself in an individual.]" (13)

   Further, distinctions between clinical and legal definitions of mental disorders are subtle and warrant examination. (14) For instance, the New York State Mental Hygiene Law defines "mental disability" as: "[M]ental illness, intellectual disability, developmental disability, alcoholism, substance dependence, or chemical dependence." (15) Its clinical corollary would be a "mental disorder," defined by the DSM as: "[A] syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning." (16) The legal definition of "mental illness" in New York State is: "[A]n affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation." (17) Some mental illnesses are recurring-such as major depressive disorder. (18) But others, including schizophrenia, typically last a lifetime;-even with treatment. (19)

   Mental disorders as defined by the DSM also include developmental disabilities for which an initial diagnosis typically occurs at some point in childhood. (20) Several specific conditions that constitute developmental disabilities within the meaning of New York State law include intellectual disability, cerebral palsy, epilepsy, and autism. (21) In addition, to properly diagnose a developmental disability, the person's condition must originate prior to the age of twenty-two, continue or be expected to continue for indefinitely, and must also present a "substantial handicap" to "such person's ability to function normally in society." (22) Finally, mental disorders also include cognitive disorders. (23) These are disorders characterized by serious impairments in memory or cognitive functioning "that are acquired rather than developmental." (24) Common symptoms may include disorientation, confusion, speech and language problems, forgetfulness, or memory loss. (25)

   Personality disorders, in contrast, are not usually "conditions that render defendants incompetent to stand trial" or relieve them of criminal responsibility. (26) In some cases, a defendant may have multiple diagnoses, requiring fact finding and clinical opinion as to the disorder or condition primarily contributing to the defendant's incapacity. (27) In any particular case, the clinical and legal terminology discussed above requires contextual application to appreciate and understand the potential cause of a person's alleged diminished mental capacity and his or her ability to stand trial or be held criminally responsible for his or her actions. (28)

2. PREVALENCE OF MENTAL DISABILITIES IN THE CRIMINAL JUSTICE SYSTEM

   Forty-four of fifty states surveyed in 2008 reported that there was at least one jail that was holding more mentally ill individuals than the single largest psychiatric hospital in that state. (29) This sobering statistic is reflective of a national trend demonstrating that the rate of jail and prison incarceration increased as the rate of psychiatric hospitalization decreased. (30) Many severely mentally ill persons who come to the attention of law enforcement receive their inpatient care in jails and prisons, at least in part, because of a dramatic reduction of psychiatric inpatient beds. (31) The transformation of persons with severe and persistent mental illness from prisoners to patients to prisoners again is a tragedy reflected in the arc of history:

   From 1770 to 1820 in the United States, mentally ill persons were routinely confined in prisons and jails. Because this practice was regarded as inhumane and problematic, until 1970, such persons were routinely confined in hospitals. Since 1970, we have returned to the earlier practice of routinely confining such persons in prisons and jails. ... In 2012, there were estimated to be 356,268 inmates with severe mental illness in prisons and jails [in the United States]. There were also approximately 35,000 patients with severe mental illness in state psychiatric hospitals. Thus, the number of mentally ill persons in prisons and jails was 10 times the number remaining in state hospitals. (32) As stated by one author, there were compelling reasons to close the asylums in the United States, but implementing deinstitutionalization in this country turned out to be a disaster. (33) Specifically, "[s]tate governments, previously responsible for covering the costs of mental health care, exploited deinstitutionalization to offload responsibility and cost.... Deinstitutionalization turned into transinstitutionalization-at first to nursing homes for the older patients, (34) then to prisons for the younger ones." (35)

   1. Sentence-Serving Inmates in New York State

      As of January 1, 2016, there were 52,340 inmates in the custody of the Department of Corrections and Community Supervision ("DOCCS") in New York State and approximately twenty percent (10,249) were on the caseload of the Office of Mental Health ("OMH"); of those, roughly twenty-two percent (2,322) were identified as having serious mental illness. (36) The prevalence of mental disabilities among women inmates was more than twice as high as men, according to DOCCS. (37) Inmates with mental illness may reside in general population, residential mental health treatment units, and intermediate care programs. (38) Others may require inpatient care and treatment at the 208-bed Central New York Psychiatric Center. (39) DOCCS also operates special needs units for inmates with developmental disabilities. (40)

      Once incarcerated, individuals with developmental disabilities are vulnerable to victimization and theft by other inmates, and are more likely to be sexually assaulted or exploited to violate regulations by other inmates. (41) "Because of limited understanding, inmates with intellectual and developmental disabilities may have greater difficulty following rules when incarcerated, resulting in longer sentences and a lower likelihood of parole." (42) Similarly, prison has been...