No right to competence at SVP trial, court holds

You all know what a "Catch-22" is, right?

In the novel by the same name, that was the military catch that kept any airman from avoiding a combat mission. More broadly, it is a double bind in which a government bureaucracy achieves its goals through circular logic that in reality is both illogical and even immoral at times.

For a perfect, modern-day example, read last week's appellate opinion in the Wisconsin case of Ronald D. Luttrell (available here).

Luttrell is (or at least was) a pretty bad man. Back when he was 29 years old, he raped and killed an 83-year-old woman after breaking into her home. He is now 53 and because his prison term has ended, the state wants to lock him in a hospital so he cannot commit any future crimes.

What the appellate opinion boils down to is this: Luttrell does not have the right to be found competent before being tried as a Sexually Violent Predator. But the opinion is a great example of a Catch-22 because of its circular reasoning, geared not toward justice but toward achieving the state's utilitarian goal of incapacitation.

In the first catch, the court says that Luttrell is not being punished: He is facing civil commitment only to protect the public. Because he is not being punished, criminal protections do not apply. That is despite the fact that SVP "patients" face far more dire consequences than most criminal defendants. Here in California, for example, with one prior "qualifying offense" and an easily demonstrated risk to the public, you can get what amounts to a life sentence at a state hospital.

Second, the court argues, Luttrell must by definition be mentally ill or he could not be civilly committed. That is because, in order to be legal under U.S. Supreme Court holdings, a civil commitment must be based upon a diagnosed "mental abnormality" that makes the person "likely" to commit future sexually violent acts.

This is another great Catch-22. The mental illnesses that most frequently cause incompetence to stand trial are the big ones, like Schizophrenia and Mental Retardation. In SVP cases, people are assigned controversial diagnoses like Pedophilia, "Paraphilia NOS," and Antisocial Personality Disorder (see my previous posts, here and here). These conditions do not scramble the brain such that a person would be legally incompetent.

Competency is not some quirky technicality, by the way. It is a fundamental right in the criminal justice system in most countries. The idea, descended from British common law, is that it is patently unfair to put someone on trial when he is too crazy to defend himself. Not only that, but it makes the government look bad. The requirements for competency are also pretty basic. You need only a rudimentary understanding of your legal situation, and a minimal ability to assist your attorney in preparing a defense.

Contrary to what many people - including some defendants - think, being found incompetent in a criminal case does not necessarily get you off. You go to a state hospital, where you may spend more time incarcerated than if you had pleaded guilty and gone to jail.

However, there are limits. Back in the 1960s, a "feeble-minded" deaf-mute named Theon Jackson was found incompetent and received what amounted to a life sentence for two petty thefts totaling $9. His case triggered reforms that cap how much time a person can be hospitalized for competency restoration treatment. In Wisconsin, for example, a criminal defendant who is not likely to "become competent" within one year must be released from confinement unless he is eligible for the regular kind of civil commitment due to grave disability or dangerousness.

And that is precisely the worry of the Wisconsin court as to Sexually Violent Predators. Although they are dangerous under SVP definitions, most would not meet the criteria for dangerousness under the regular civil commitment laws, which require evidence of a recent act or threat to do serious bodily harm. Luttrell, for example, would not qualify because he committed his crime almost a quarter of a century ago.

But, hey, compared to the innocent children victimized in Operation Wagon Train or the Yearning for Zion raid, it's hard to muster a whole lot of sympathy for a guy who raped and murdered an 83-year-old woman in her own home. Even if it was a long time ago.

Hat tip: Luis Rosell. Photo credit: "Gilbert" (Creative Commons license).

Forensic psychology angles in the Josef Fritzl case

The whole world seems glued this week to the bizarre case of Josef Fritzl. As you know, Fritzl is the Austrian man who kept his daughter and three of their children together locked in an elaborate basement dungeon for 24 years. As the dust settles, I'm trying to set aside my moral and emotional reactions to parse out the intriguing forensic psychology angles. Among them:

Insanity defense

At the top of the list is the defense's announcement that it will pursue an insanity defense.

"I believe that the trigger was a mental disorder, because I can't imagine that someone has sex with his own daughter without having a mental disorder," said his lawyer, prominent Viennese attorney Rudolf Mayer.

If the attorney is thinking about the archaic concept of moral insanity, he has a point. From a lay perspective, Fritzl has got to be deranged. How else could he engage in such an elaborate, long-running scheme against his own flesh and blood? Indeed, "mentally deranged" was how he was described by a barman at a brothel he frequented, based on his sadistic and deviant sexual behavior with the prostitutes there. (Prostitution is legal in Austria.)

Pundits don't seem to know much about Austria's legal standard of insanity, and I couldn't find it online. But in most countries, including in Western Europe, the insanity defense is rarely invoked and is even more rarely successful.

As one criminal defense lawyer recently put it, "You can be extremely crazy without being legally insane. You can hear voices, you can operate under intermittent delusions, you can see rabbits in the road that aren't there and still be legally sane."

I could be wrong, but it's hard for me to see how a retired engineer and real estate developer who could maintain such an elaborate subterfuge for a quarter of a century would meet the legal standard of insanity in terms of not knowing the difference between right and wrong.

However, even were Fritzl to pursue the defense, it would not mean that he would "get off," a common misperception regarding the insanity plea. Rather, he would likely be locked in a psychiatric hospital for the remainder of his natural life.

You can listen to a half-hour conversation among experts on NPR's Talk of the Nation. Featured are law professors Christopher Slobogin and Alan Dershowitz and Slate magazine legal correspondent Dahlia Lithwick. (Click on the NPR logo to the right.)

It will be interesting as case facts emerge to learn what complex algorithm may have produced Fritzl's twisted psyche. According to a sister-in-law, he grew up without a father, and his mother beat him on a near-daily basis. Certainly, that is one type of home environment that can produce a sexual sadist.

Competency to stand trial

Much public confusion exists about the distinction between legal insanity and incompetence to stand trial, and this confusion may be occurring in the Fritzl case as well.

Fritzl's attorney is quoted as saying that his client is "mentally incompetent" and that he will challenge any other decision reached by the psychiatrist who has been appointed by the court. Austrian law allows him to obtain an expert opinion from a psychiatrist of his choice.

While the legal construct of insanity pertains to an accused person's past state of mind, including whether he knew the difference between right and wrong at the time of his crime, competency pertains to the accused's present ability to understand the legal proceedings and assist one's attorney at trial.

As such, incompetency is not a permanent barrier to prosecution. If a person is found incompetent to stand trial, he is treated until he becomes competent, at which time he stands trial. (In the NPR program I link to, above, Dershowitz claims competency is often a permanent barrier to prosecution, but I believe he is wrong about that except in unusual cases in which a defendant cannot be restored to competency due to such things as severe retardation or dementia.)

Sex offending

Austria, like the rest of Western Europe, has not jumped on the imprisonment bandwagon in recent years. Its incarceration rate is 108 per 100,000, more than seven times lower than the United States'. Criminal code reforms in 1974 emphasized the importance of diversion as an alternative to incarceration. And Austrians are so opposed to capital punishment that they stripped California Gov. Arnold Schwarzenegger's name from a soccer stadium in his hometown because he refused to pardon a condemned man.

But as we here in the United States certainly know, extreme cases fuel extreme laws, and the heinousness of Fritzl's deeds may fuel a drive for harsher punishment in Austria, especially of sex offenders.

Indeed, Austria's justice minister is already vowing to spearhead a sweeping review of all sentencing laws and to propose legislation doubling prison sentences for "especially dangerous" predators.

Fueling outrage around the world is the fact that Fritzl had a prior sex offense conviction. Way back in 1967, when he was in his early 30s, he served time for rape. He also had a second conviction for attempted rape and an arrest for indecent exposure, according to reports.

Prosecutors are still deciding how to charge Fritzl so that he faces the maximum possible punishment. The maximum sentence for rape is 15 years, and unlike in the United States time is not added consecutively for multiple charges. He could get a few additional years if convicted of "murder through failure to act" for the death of an infant whom he admits incinerating. But since he is 73 years old, the difference in his sentence is probably moot except on a symbolic level.

Trauma psychology

Perhaps most interesting, and most unsettling, is the psychological effects of their ordeal on Fritzl's victims. These include Elizabeth, the daughter imprisoned for a quarter of a century, the children, and even Fritzl's wife Rosemarie, who claims to have had no inkling of her husband's deeds.

Elisabeth was initially kept tethered on a cable that allowed only limited movement. For about nine years, she and her older two children, 19-year-old Kerstin and 18-year-old Stefan, were kept in a tiny room together, meaning the children would have witnessed their grandfather’s sexual abuse of their mother.

Nineteen-year-old Kerstin remains quite physically ill, so we do not know much about her mental state. Stefan, however, shows signs of severely impoverished physical and psychological development, including trouble talking and moving around in the open after spending his entire life in a small, windowless basement. Younger son Felix, 5, probably has the best chance of recovery. The children reportedly communicate through a combination of speech and animal sounds, including growling and cooing, and become exhausted with the effort of trying to make themselves intelligible to outsiders.

As child psychologist Bruce Perry explains in his new book, The Boy Who Was Raised as a Dog, trauma and neglect at any age can cause gaps in neurological development that are difficult to reverse. Dr. Perry’s treatment is "neurosequential," meaning he sequentially targets brain regions left undeveloped by trauma. When children's brains are affected in infancy, for example, therapy may start with healing touch or rhythm before moving on to higher brain functions.

Elizabeth's psychological state is difficult to even fathom. Her father reportedly began raping her when she was 11 and continued to do so for a number of years. She bore seven of his children, one of whom died and three of whom were taken away from her to live upstairs. Imprisoned in the tiny cellar from the age of 18, she reportedly looks far older than 42.

"Why didn’t she try to escape?" some people have asked. We, of course, don't know that she did not try. But if she didn't, based on the limited available facts it seems reasonable to guess that it was due to a combination of fear, learned helplessness, and Fritzl’s diabolical control and terrorization. The initial door to the prison cell was a half-ton of reinforced concrete on steel rails. Fritzl apparently convinced Elisabeth and the children that the concrete door was wired to explode, and that poisonous gas canisters would explode if they tried to escape.

One can only hope that with high-quality treatment and support the family will have some chance of recovery. And that can only begin to happen after the legal case is resolved.

The Scotsman of May 9 has details of Fritzl's in-depth interview on his motives. Wikipedia has additional information and links to background sources.

Two major competency cases in court

Self-representation and execution at issue

• Should a higher level of competency be required for being one's own lawyer than for standing trial with a real lawyer?

• How competent must someone be in order for the state to kill him?

Those two issues were in court yesterday in separate but somewhat related cases, one before the U.S. Supreme Court and the other in a widely awaited Texas appellate court ruling.

Competency to represent oneself

Although it was eclipsed by the OJ trial happening at the same time in Los Angeles, some readers may recall the farcical spectacle of Colin Ferguson's trial. Ferguson was the delusional man who opened fire on the Long Island Railroad, killing six people and wounding 19 more. After firing his prominent attorneys, he represented himself and presented a bizarre, delusionally based defense. He was found guilty, naturally, and received six consecutive life terms.

The Ferguson spectacle was enabled by the high court's 1993 opinion in Godinez v. Moran. Tom Moran was a severely depressed, suicidal defendant who waived the right to an attorney in a double murder case, pled guilty without presenting any evidence, and was promptly sentenced to die. The Supreme Court held that the same low standard of competency exists for all criminal proceedings.

Proponents of allowing mentally ill defendants to represent themselves despite questionable understanding and judgment cite the Sixth Amendment's right to self-representation. Legal scholar Michael Perlin, who just published an excellent book on competency, calls this argument a "pretextual" rationalization.

The competing positions were at the forefront of oral arguments before the U.S. Supreme Court yesterday in the case of Indiana v. Edwards. The case involves Ahmad Edwards, a schizophrenic man whom a trial judge ruled was competent to stand trial for a robbery-shooting but incompetent to represent himself.

The state of Indiana argued before the high court yesterday that allowing states to set their own, higher standards for self-representation ensures both fairness for accused individuals and the dignity of the courts.

Edwards' attorney countered that "the expressed premise of the Sixth Amendment and of our adversarial system generally is that the defense belongs to the accused and not to the state."

The high court justices were divided along predictable lines. Justice Stephen Breyer and Anthony Kennedy seemed concerned about people ending up in prison because they were too disturbed to represent their best interests at trial. But Justice Antonin Scalia said that's just too bad for them – if a defendant makes a poor choice, it is "his own fault."

A ruling is expected within the next few months.

Competency to be executed

The legal standard is much lower for competency to be executed. If you've got a basic understanding that you committed a crime and the state is going to kill you for it, you're good to go (to the Pearly Gates, that is).

That's the "Ford standard" set in the 1986 case of Ford vs. Wainwright, in which the Supreme Court ruled that executing a person who is severely mentally ill constitutes cruel and unusual punishment.

Last year, the highly polarized Supreme Court declined to clarify the somewhat vague Ford standard, issuing a 5-4 opinion on narrow procedural grounds in the closely watched Panetti v. Quarterman case (see my previous blog posts here and here; the opinion is here).

Yesterday, a Texas court responded by affirming convicted killer Scott Panetti's competence to die. Indeed, said the U.S. District Court for the Western District of Texas, "if any mentally ill person is competent to be executed for his crimes, this record establishes it is Scott Panetti."

Panetti, who killed his estranged wife's parents, was found competent to stand trial after two jury trials on that issue. Unlike Ahmad Ewards, he was allowed to represent himself at his 1995 murder trial despite being floridly psychotic and delusional - and he's been regretting it ever since. During his trial, he rambled insanely and tried to subpoena Jesus Christ, John F. Kennedy, and other dead people.

"The record of Panetti's competency hearings and trial is not pretty," the appellate court conceded. "For better or worse, however, the issues of Panetti's competence to stand trial and his insanity defense have been tried, appealed, reviewed in state and federal habeas proceedings, and conclusively put to rest. Panetti is not permitted to relitigate these arguments in his proceedings under Ford."

The court’s 62-page opinion is interesting reading. It reviews the facts of the case, the exhaustive history of appeals, and the expert witness testimony of numerous well-regarded forensic experts called by both sides. The case even involved expert testimony by a forensic psychiatrist and neurologist, Dr. Priscilla Ray, on the science behind competency opinions, that is, "the extent to which psychiatric science can assist the Court in assessing competence to be executed, particularly with regard to the concept of rational understanding."

In discussing Panetti's "rational understanding" of his situation, the court also contemplated evidence suggesting that Panetti was exaggerating his schizophrenic disorder to avoid the needle. Yesterday's opinion cited the results of widely used tests of malingering, including the Structured Inventory of Reported Symptoms (SIRS) and Green's Word Memory Test (WMT).

At the end of the day, after reviewing all of the evidence, the Court held:

"Panetti is seriously mentally ill…. While the extent to which Panetti has been manipulating or exaggerating his symptoms is unclear, it is not seriously disputable that Panetti suffers from paranoid delusions of some type… However, it is equally apparent … that [his] delusions do not prevent him from having both a factual and rational understanding that he committed [the] murders, was tried and convicted, and is sentenced to die for them…. Panetti was mentally ill when he committed his crime and continues to be mentally ill today. However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two."

The ruling can be found HERE. National Public Radio has coverage and commentary here. A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available here. An essay by Yale scholar Steven Erickson entitled "Minding Moral Responsibility," which discusses the Panetti case, is available here. The Indianapolis Star has more coverage of Indiana v. Edwards.

Hat tip: Steven Erickson

Competency hearing exposes clinical feud

Competency to stand trial: Flip of the coin?

Whether a defendant is found incompetent to stand trial is based mainly on "luck of the draw," that is, which psychologist or psychiatrist happens to be assigned by the court.

That's the controversial thesis of law professor Michael Perlin, who's written an excellent book on competency that's due out this spring. As evidence, Perlin cites a study in which forensic evaluators split almost evenly in their opinions about a hypothetical vignette. Perlin lambasts the current system as a "fraudulent" one in which the courts abrogate their decision-making responsibilities to "imperial experts" who decide competency based largely on idiosyncratic approaches and moral stances.

While many might argue with this rather extreme position, proponents could point to the unfolding murder trial of Thomas Shane O'Hagan as a perfect example.

O'Hagan allegedly stabbed his girlfriend to death while she was taking a shower and then put her body in a small plastic box.

In the 3 ½ years since then, the Pierce County (Washington) Superior Court has issued nine orders for competency evaluation and treatment. But the experts can't seem to agree on whether he is competent to stand trial.

"First doctors said he was competent to stand trial and could understand what was going on and help his attorneys defend him. Then they said they weren't sure. Then they said he wasn't competent anymore," according to news coverage a year ago.

The saga has grown to farcical proportions, with a dispute between opposing experts spilling into court and forcing the judge to remove herself from the case.

In an unusual twist, two opposing experts, one a psychologist and the other a psychiatrist, both work for the same state hospital that has repeatedly evaluated and treated O'Hagan.

Psychologist Barry Ward, who has evaluated O'Hagan at least three times, testified at a hearing last September that the defendant was not competent to stand trial. Psychiatrist William Ritchie took the opposite position.

Further muddying the issue, the judge invited a third doctor from Western State Hospital who was observing the proceedings, psychiatrist Margaret Dean, into her chambers to view some artwork. Ward, the psychologist who testified that O'Hagan was incompetent, emailed attorneys and told them that Dean was a member of O'Hagan's hospital treatment team, something the judge says she didn't realize when she issued her invitation. When Dean found out about Ward's email, she called the judge to complain.

Thrust into the middle of this feud among clinicians, Superior Court Judge Beverly Grant Ward was forced to remove herself from the case. The state hospital, meanwhile, is reportedly conducting an internal review.

Washington is among a decreasing number of states with a centralized competency evaluation system in which defendants are evaluated while hospitalized in state facilities. O'Hagan's attorneys are now arguing that their client cannot receive an unbiased evaluation at the hospital, and so should be evaluated at a "nonstate-run facility."

Of course, if Professor Perlin's controversial thesis is correct, a change of setting won't make any difference: Luck of the draw will still decide whether O'Hagan is found competent or incompetent to stand trial.

Sources:

Morris, G.H., Haroun, A.M., & Naimark, D. (2004). Health Law in the Criminal Justice System Symposium: Competency To Stand Trial on Trial. Houston Journal of Health Law and Policy, Vol. 4, p. 193

Perlin, M.L. (2004). Health Law in the Criminal Justice System Symposium: "Everything's a Little Upside Down, As a Matter of Fact the Wheels Have Stopped": The Fraudulence of the Incompetency Evaluation Process. Houston Journal of Health Law and Policy, Vol. 4, p. 239

Lynn, Adam, “Feud makes a mess of murder case," News Tribune (Tacoma, Washington), Feb. 10, 2008

Hucks, Karen, “Judge keeps suspect on drugs for disorder; Attorneys argue whether a man charged with killing his girlfriend must continue to take anti-psychotic drugs. A judge says yes,” News Tribune, May 27, 2006

Utah court: OK to forcibly medicate accused kidnapper

One of two defendants in the highly publicized Elizabeth Smart kidnapping case in Utah can be forcibly medicated in an attempt to make her competent to stand trial, the Utah Supreme Court has ruled.

Wanda Eileen Barzee has been at the Utah State Hospital for more than three years without making any progress toward competency. Claiming she is the "mother of Zion" and receives messages from God through her television, she shuns treatment and refuses medication.

Friday's ruling upheld an opinion by a district court judge last year that administering antipsychotic medication would be in Barzee's best medical interest.

A key bone of contention is the expected efficacy of antipsychotic medications. State doctors claim that antipsychotic drugs have a 70% chance of making Barzee competent. Defense medical experts counter that the odds were closer to 20%.

Under Sell v. United States, for a defendant to be forcibly medicated to restore competency, a court must find that important government interests are at stake, involuntary medication will significantly further those interests by being "substantially likely" to restore the defendant's competency, the medication is substantially unlikely to have negative side effects, and the medication is medically appropriate.

Barzee and Brian David Mitchell are awaiting trial in the kidnapping and sexual assault of then-14-year-old Elizabeth in 2002. Police say Mitchell, a self-proclaimed prophet, planned to make Elizabeth one of his wives.

The Salt Lake City Tribune and the Deseret Morning News have coverage; the high court opinion is available online here.

Postscript: Judge Judith Atherton's 2005 competency decision in codefendant Brian David Mitchell's case, a thoughtful analysis of competency as it pertains to religiosity, is online HERE.

Hot off the press: Mental health and criminal justice

The new issue of Criminal Justice, the American Bar Association magazine (Vol. 22 No. 3), features a roundup of cutting-edge topics at the intersection of psychology-law. The articles are written by notables in their fields and, best of all, they are available online and for free:

Mental Health and Criminal Justice: An Overview

By Andrew E. Taslitz

The Supreme Court's Recent Criminal Mental Health Cases Rulings of Questionable Competence

By Christopher Slobogin

For decades the subject of mental illness and criminal law languished in the legal "backwaters" at the U.S. Supreme Court. That changed in 2003 when the Court accepted the case of Sell v. United States (a defendant's right to refuse medication), followed quickly by two more seminal decisions in Clark v. Arizona (2006) (the scope of psychiatric defenses) and Panetti v. Quarterman (2007) (the definition of competency to be executed). But has this sudden interest in mental illness issues resulted in good law? The author argues to the contrary and details where and how the Court has erred.

Prosecutor as "Nurse Ratched"?: Misusing Criminal Justice as Alternative Medicine

By Gerald E. Nora

Traditionally, prosecutors approach claims of mental impairment by criminal defendants with skepticism, contesting competency defenses and sentencing mitigation. More recently, though, they find themselves as "diversionary gatekeepers" - seeking alternatives to trials and prison for those who more aptly belong in the medical arena. The author, a Cook County ( Illinois) state's attorney, finds neither role satisfactory and argues for reforms that will limit a prosecutor's responsibility for addressing a defendant's mental health needs through the justice system.

The Promise of Mental Health Courts: Brooklyn Criminal Justice System Experiments with Treatment as an Alternative to Prison

By Matthew J. D'Emic

Judge D'Emic tracks the establishment of one of the country's first courts to use diversionary treatment in dealing with mentally ill criminal defendants. He maps the defendant's journey from intake through assessment and treatment to "graduation" from the program.

Executing the Mentally Ill: When Is Someone Sane Enough to Die?

By Michael Mello

An opponent of the death penalty, Prof. Mello presents this personal account of advocating for mentally ill death row inmates. While detailing his clients' descent into madness and the tortured disconnect between the fantasy world of the insane and a justice system bent on accountability, the author looks at the impact of three high-profile cases.

Mental Health Status and Vulnerability to Police Interrogation Tactics

By William C. Follette, Deborah Davis, and Richard A. Leo

The authors offers a psychological explanation of how police interrogation methods affect the "average" person's ability to understand and exert his or her Miranda rights and what makes the mentally ill so much more susceptible to police coercion and likely to falsely confess.

Supreme Court Blocks Execution of Psychotic Man

In a widely awaited ruling, the U.S. Supreme Court ruled 5-4 today that Texas cannot execute schizophrenic killer Scott Panetti.

The highly polarized court sidestepped the controversial issue of the Constitutionality of executing the mentally ill. Rather, the decision barred Panetti's execution because he was not allowed to submit evidence of his psychiatric disorder at the state court level.

Panetti, who killed his estranged wife’s parents, was found competent to stand trial after two jury trials on that issue. He represented himself at his 1995 murder trial. He was floridly psychotic and delusional, rambling insanely and attempting to subpoena Jesus Christ, John F. Kennedy, and other dead people.

In the 1986 case of Ford vs. Wainwright, the Supreme Court held that executing a person who is severely mentally ill constitutes cruel and unusual punishment, banned by the Eighth Amendment. However, the "Ford standard" is vague as to the required severity of the mental condition, and people on all sides of the issue had been hoping for clarification from the high court.

The Court's opinion and a dissenting opinion are available online.

More background on the Ford standard and on Panetti's case is available on my blog entry of April 20, “Too Sick to Die?”

A 28-minute video, "Executing the Insane: The Case of Scott Panetti," is available at: http://blip.tv/file/282532.

Should jails be designated "treatment facilities"?

When criminal defendants are found incompetent to stand trial, they go to state hospitals for competency restoration treatment. But hospitals around the country have run out of beds, forcing psychotic defendants to linger in county jails for many months.

In response to this crisis, California is proposing to designate county jails as "treatment facilities" that can provide pretrial defendants with competency restoration treatment for up to six months.

Under Senate Bill 568, jails will gain the authority to forcibly medicate incompetent defendants. (This is a complicated area of law governed by the 2002 U.S. Supreme Court case of U.S. v. Sell. For background, see: www.jaapl.org/cgi/reprint/32/1/83.pdf.)

Forensic psychologists are voicing concern about this move.

First of all, jails are unlikely to do much more than administer antipsychotic medications, in some cases without proper legal review and oversight. Jail psychiatric services tend to be minimal and underfunded. They are not set up to provide effective competency restoration training.

A second concern is that the jail environment is not conducive to mental health. Prisoners with severe (and often complex) mental disorders need around-the-clock services from highly trained professionals in a therapeutic setting in order to become competent to stand trial.

The bill, backed by the sheriff’s departments that run county jails, appears to be in response to a recent Sacramento court ruling that incompetent defendants must be transferred quickly to state hospitals for treatment. A competing bill, Assembly Bill 1121, would require that defendants be transferred to state hospitals within 14 days of being found incompetent.

If SB 568 passes, other states with similar crises will likely try this solution as well, foisting their fiscal burdens onto cash-strapped county governments. It’s all part of the trickle-down effect of the criminalization of the mentally ill that began in the 1970s with the defunding of community mental health programs and escalated with the prison boom of the 1980s and 1990s.

Thanks to Robert D. Canning, Ph.D., Paul G. Mattiuzzi, Ph.D., and Philip J. Davis, Ph.D. for their contributions to this analysis.

Senate Bill 568 is available at: http://tinyurl.com/37rl53

Assembly Bill 1121 is available at: http://tinyurl.com/39cn6

California weighs in on Atkins

States are using various approaches to comply with the U.S. Supreme Court's ban on executing mentally retarded offenders. (The 2002 case of Atkins v. Georgia held that such punishment was cruel and unusual, in violation of the Eighth Amendment.) Now, the California Supreme Court has weighed in, with an intriguing opinion in the case of Jorge Junior Vidal.

The Court unanimously held that a defendant may be spared the death penalty because he is mentally deficient in one area, even if his overall IQ score falls in the normal range. The decision overturned an appeals court finding that “full-scale IQ” was the best measure of intelligence.

Vidal was one of seven Tulare County men who faced the death penalty for the grizzly 2001 torture-killing of a 17-year-old youth. As a child, Vidal underwent intelligence testing due to his severe academic problems. Although his full-scale IQ on the widely used Wechsler test consistently fell above the typical cutoff score of 70 for mental retardation, this was due to a large split between his low verbal IQ score and his high performance IQ (which measures non-verbal skills such as ability to solve puzzles).

At issue in his case was how to determine whether he was mentally retarded for purposes of the death penalty. Under California’s Penal Code Section 1376, mental retardation is defined as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18.” In Atkins, the U.S. Supreme Court did not specify how “general intellectual functioning” was to be determined.

At the trial level, two psychologists testified that Vidal’s full-scale IQ score was misleading. They opined that Vidal’s verbal abilities were more important in this context, because they involve the ability to process information and to think logically. Individuals with low verbal IQs, they argued, have problems interpreting social cues and are more likely to go along with a group. The prosecution countered with a psychologist who testified that the most accurate measure of mental retardation was the full-scale IQ score.

The state Supreme Court ruled that a specific test score or legal rule cannot determine “general intellectual functioning.” Rather, the court must consider the defendant’s overall capacity based on the specific evidence in that case.

In a great discussion of the distinction between science and law, the Court chastised the appellate court for taking sides in a psychological debate: “An appellate court cannot convert a disputed factual assertion into a rule of law simply by labeling it a ‘legal standard.’ … [The question here is] whether, when both sides of a scientific dispute have been presented by expert testimony, an appellate court may declare the debate’s winner as a matter of law.”

The decision is likely to affect dozens of cases statewide by giving judges broader discretion to spare defendants from the death penalty based on low intellectual functioning.

The court's decision is available at: http://www.courtinfo.ca.gov/opinions/documents/S134901.PDF

CA: Juvenile too immature to stand trial

Following trends in a handful of other states, an appellate court in California has held that developmental immaturity can be a grounds for a finding of incompetency to stand trial.

California law lists only mental illness and developmental disability as grounds for incompetency. But the new ruling acknowledges that some children can be too immature to understand their legal proceedings or assist in their own defense.

With more juveniles being prosecuted as adults, more attention is being paid to the issue of juvenile competency to stand trial. A new instrument for evaluating juveniles’ competency, written by leading forensic psychologist Tom Grisso, stresses the need to consider developmental maturity.

The Dante H. case, decided May 10 by California's 3rd District Court of Appeal, involved an 11-year-old Sacramento boy accused of breaking into an elementary school and stealing candy bars. He was charged with second-degree burglary.

Two psychologists had evaluated the boy, and both concluded he was not fit to stand trial.

Dr. Adam Alban has kindly made the court decision (2007 Cal. App. LEXIS 704) available online.

More information on adolescent development issues in juvenile justice is available from the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice.

Too ill to die?

Scott Panetti thinks Texas wants to kill him because it is in cahoots with the devil. The devil, he theorizes, wants to stop him from preaching the gospel to his fellow prisoners.

Panetti has a severe mental disorder. He had been hospitalized more than a dozen times before he killed his estranged wife’s parents back in 1992.

No one doubts that he is crazy (although the prosecution claims he is exaggerating). At his trial, he fired his attorney and represented himself. He flipped a coin to decide on whether to keep a potential juror on his panel. Wearing a purple cowboy suit and mimicking a John Wayne character called the Ringo Kid, he blamed the shootings on another personality named “Sarge.” As evidence, he tried to subpoena Jesus Christ, the Pope, and John F. Kennedy.

Now, the U.S. Supreme Court is set to decide whether he is too ill to execute.

In the 1986 case of Ford vs. Wainwright, the Supreme Court held that executing a person who is severely mentally ill constitutes cruel and unusual punishment, banned by the Eighth Amendment. The legal standard, known as the “Ford standard,” is whether a person is so insane that he cannot understand the link between his crime and the punishment.

But the Ford case did not give a precise definition of what constitutes competence for execution. Is a mere factual understanding enough? Or should the prisoner have a “rational” understanding of why he is going to be executed? That is the issue in Panetti's case.

The state argues that it is sufficient for Panetti to realize that he committed the murders and that he is being put to death. It is irrelevant that he thinks he is being executed for preaching the Bible.

Panetti's lawyers counter that a Constitutional execution requires more than this simple knowledge. The defendant should appreciate that the execution is society’s retribution for his crime. Panetti, living in a delusional world, cannot make that connection.

The American Psychological Association, the American Psychiatric Association, and the National Alliance on Mental Illness agree with Panetti's counsel. They have filed a joint petition arguing that people such as Panetti should not be executed because they “cannot rationally understand the reasons for their execution."

The highly polarized Supreme Court may sidestep this complex question on procedural grounds by asserting that Panetti’s appeals were exhausted. A decision is expected by July.