Legal Update

W. Lawrence Fitch, J.D.University of Maryland Schools of Law and Medicine

Joint Meeting, NASMHPD Forensic Division and Southern States Psychiatric Hospital Association

Atlanta, GeorgiaSeptember 24, 2014

Hall v. Florida(U.S. Supreme Court, 2014)

• Question: Determination of ID (MR) for use at sentencing in capital case?

• Hall receives death sentence 1978 for pretty horrendous crime; MR (ID) not a statutory factor in mitigation

• 1989 US S Ct says capital def must have opportunity at sentencing to show evidence of MR in mitigation (and jury must be able to “give it effect” at sentencing)

• Hall resentenced: court notes “substantial evidence Hall MR all his life, ” but death sentence again

Hall, cont’• 2002 US S Ct decides Atkins v. Va – DP unconstitutional for MR defendants– DP reserved for worst of the worst

• “If culpability of average murderer not enough, no def with MR culpable enough”

• Reliability concerns as well (risk of false confessions, reduced ability to assist)

– Left task of defining MR to the states

• FL enacts statute exempting MR defendants from DP, but requiring IQ of 70 or below

• Hall resentenced: DP again– IQ of 71 precludes finding of MR; FL S Ct affirms

Hall, cont’• US S Ct reverses: violation of 8th Amendment

• Cites APA: Individual with IQ > 70 may have ID if significant limitations in adaptive behavior

• Finds that FL law “disregards established medical practice in 2 inter-related ways”: (i) treating IQ as “definitive evid of intellectual capacity” and (ii) not recognizing that IQ is “imprecise”

• Lots of discussion of SEM– that IQ # reflects a % degree of confidence that ind’s IQ is within a range of the # (IQ of 71 reflects 68% confidence IQ between is 68.5 and 72.5, or a 95% degree of confidence it is between 66 and 76)

Hall, cont.

• “ID is a condition, not a number– IQ is approximation, not infallible assessment of intellectual functioning”

• Holding: “When a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits”– DP requires enhanced reliability

• 5 to 4 opinion; J Alito writes strong dissent: states should be free to define ID as they see fit; majority relies too much on “views of professional organizations,” which change (ref DSM V)

Kansas v. Cheever (U.S. Supreme Court, December 2013)

• Q: Application of 5th Amendment to results of a forensic evaluation

• Cheever charged in state court with capital murder

• Kansas S Ct finds death penalty unconst’l (in another case)

• States dismisses charges without prejudice so Feds can prosecute for capital murder under federal law

Cheever, cont’• Cheever gives notice of intent to use evid of

methamphetamine intoxication to negate specific intent; court orders evaluation

• Then US S Ct reverses Kansas S Ct, finds DP const’l

• Feds drop charges without prejudice, and state reinstates its prosecution

• Cheever presents involuntary intoxication defense

• Prosecutor calls expert who did eval for federal court (to testify ASPD, not intox, fueled the crime)

Cheever, cont’

• Defendant objects to expert on 5th Amendment grounds: eval can’t be used b/c Cheever “did not voluntarily agree to the eval”

• Def cites Estelle v. Smith, which forbade court-ordered CST eval to be used at sentencing in capital case to prove future dangerousness

• Trial court allows expert testimony, Cheever convicted, sentenced to death

Cheever, cont’• Kansas S Ct reverses: Testimony of prosecution expert

violated 5th Amendment (based on Estelle)– Can’t use eval def did not initiate if def does not put “mental

state” at issue– Distinguishes Buchanan v. KY, which allowed prosecution to rebut

def’s mental state claim with expert who did unrelated eval jointly requested by the def

• US S Ct reverses Kansas S Ct– Affirms Buchanan, says application not limited to evals the def

requests– Claim of intox negating specific intent is a mental state defense– Rule consistent with principle that when def chooses to testify, def

may not refuse cross examination

Lessen in Cheever (and Buchanan)

• 5th Amendment protects against use of eval results only if def presents no mental condition evidence

• Doesn’t matter that eval was not requested by the def or that the eval was to address unrelated questions (so long as testimony within scope of eval and is relevant)

Brown v. Plata (U.S. Supreme Court, 2011): Court Orders Release of 30,000+ Inmates—

Overcrowding Denies Inmates Adequate Medical and Mental Health Care

Two federal cases (1990 and 2001) found constitutional violations in CA prisons (inadequate MH care, inadequate medical care)

– California prisons designed for 80,000 but house 156,000

– As many as 54 inmates share single toilet

– Wait list for mental health care 12 months

– 1 suicide/wk. (twice national average)

– MI inmates held in “phone booth-sized cages”

– And more. . . .

Brown v. Plata, cont’

• Judges order remedial plans, assign court officials to oversee implementation (special master, receiver)

• Court officials’ reports in 2007 and 2008 show conditions deteriorating due to overcrowding—”misnomer to call the existing chaos a ‘medical delivery system’—it is more an act of desperation than a system”

• Cases consolidated before three-judge court under Prison Litigation Reform Act

Brown v. Plata, cont’

• Three-judge court issues 184-page opinion finding numerous 8th amendment violations and ordering CA to reduce its prison population to 137.5% of designed capacity within two years

• CA appeals: US Supreme Court affirms

• Prisoners are “legitimately deprived of rights fundamental to liberty” (may be locked up)—but they “retain the essence of human dignity inherent in all persons,” and this “animates the 8th Amendment prohibition of cruel and unusual punishment”

• “No other relief [but census reduction] will remedy the 8th Amendment violation”– years of court oversight brought no relief

Brown v. Plata, cont’

• State may comply by transferring prisoners to county jails or out of state or by constructing new facilities—or it may ask three-judge court to approve other measures– but, barring some remedy not yet proposed, the prison census must be reduced

• Public safety not in jeopardy: evidence suggests census reduction possible without increase in crime—target low-risk offenders, divert to treatment, use electronic monitoring

Note: CA had reduced census by 9,000 in previous two years (since three-judge court ruling)

Brown v. Plata, cont’

• Scalia and Thomas dissent:

– “most radical injunction issued by a court in our nation’s history”

– Many in the complaining class not aggrieved

– Structural injunctions invade province of executive officials and “invite judges to indulge in policy preferences”—”three years of law school and familiarity with Supreme Court precedents gives no insight whatsoever into the management of social institutions”

Brown v. Plata, cont’

• Alito and Roberts dissent:

– Court’s remedy not limited to aggrieved class of mentally and medically ill inmates

– Court could have released smaller numbers in the aggrieved class

– Dissent questions 3-judge court’s conclusion that public safety not imperiled by census reduction: selective use of experts may have mislead the judges

Implications of Plata

Increasing demands on services systems

Tapia v. US (U.S. Supreme Court, 2011): Federal Courts May Not Impose or Lengthen Prison Sentence to Foster Rehabilitation

• Defendant convicted of smuggling aliens into US

• Federal sentencing guidelines recommended 41-51 month sentence

• Court imposed 51 month sentence so offender would be confined long enough to complete the Bureau of Prison’s 500 hour drug treatment program (“number one” reason)

• “For nearly a century,” federal courts employed indeterminate sentencing to foster rehabilitation

Tapia, cont.

• Rehabilitation “failed,” and indeterminate sentencing repealed in 1984: “Imprisonment is not an appropriate means of promoting corrections and rehabilitation”

• “Court shall consider all of the purposes of punishment except rehabilitation” (retribution, incapacitation, and deterrence OK)

• Rehabilitation “is still important in determining whether a sanction other than a term of imprisonment is appropriate” (e.g., probation)

Tapia, cont.

• Prison may place offender in treatment program and court may recommend such placement, but court may not impose incarceration to ensure such placement

• Unanimous opinion

• Interpretation of federal law (Sentencing Reform Act of 1984), not binding on the states

NOTE: Though Tapia was sentenced to 51 months, she was never placed in the recommended treatment program

Miller v. Alabama (U.S. Supreme Court, 2012)

• Mandatory life sentence for crime committed before age 18 unconst’l (8th Amendment)– Special considerations with kids: “immaturity, impetuosity, and failure to

appreciate risks and consequences”– Also, “family and home environment that surrounds [the child] — and from

which he cannot usually extricate himself — no matter how brutal or dysfunctional.”

• Builds on earlier US S Ct opinions recognizing that kids are different: less culpable, not fully baked (may change)– Roper v. Simmons (2005): Death penalty unconst’l for crime committed before

age 18– Graham v. Florida (2010): Life without parole unconst’l for non-homicide

offense committed before age 18

Take Away from the Cases

• People with ID are different in ways the courts must consider carefully (Hall)

• So are kids (Miller, Simmons, and Graham)

• Prisons are not for treatment (Tapia)

• But prisons don’t dare not treat (Plata)

Brief Note: Revision of ABA Criminal Justice/ Mental Health Standards

• Standards published 1984

• Focus on traditional forensic issues (CST, NGRI)

• Revision project began Aug 2012

• Most proposed revisions simply track legal developments (e.g., Atkins v. Va, Indiana v. Edwards)

ABA Standards: Two Interesting Developments

• Call for enhanced attention to the treatment needs of all individuals encountering the CJ system– Training and new responsibilities for law enforcement,

correctional officials, attorneys, and judges– Collaboration between systems

• Alternative to CST restoration for some IST defendants– Negotiated outcomes with treatment in lieu of

incarceration– Requires defendants’ “assent”

Forensic Services 2014

Evolution of Forensic Services

Pre-1970’s• Security Hospitals in Remote Settings

• Lifetime Commitment

Late 1970’s-1980’s

• Growing Professionalism

-Fellowship Training (AAPL)

-Interdisciplinary University Programs

-Professional Organizations and Journals

-ABA Criminal Justice/Mental Health Standards

-NASMHPD Forensic Division; State Forensic Services

Evolution of Forensic Services

1980’s, cont.• Systems Changes

-Evaluations structured, often outpatient-Forensic Review Boards-Conditional Release for Insanity Acquittees

-”Dangerousness” Studies (Monahan)

• Impact of Hinckley-Tightening of Insanity Defense Criteria-Abolition of Insanity Defense (4 States)

Evolution of Forensic Services

1990’s• Systems Refinement, Development of Community

Forensic Services (Jails, CMHC’s)• Risk Assessment Technologies• Sex Offender Commitment Laws

2000’s• Broadening the Scope of Forensic Services• Court Orders and More

Incarceration Trends in the U.S. (DOJ)

Jails and Prisons1980

503,586

19901,148,702

20092,297,400

Jails Alone 2012886,947

Prisons Alone1972

196,092

1982394,374

1992846,277

20091,617,478

20131,570,400

Number of Patients in State Psychiatric Hospitals

1955559,000

1983132,000

199569,000

Today< 42,000

Forces Driving Deinstitutionalization

• Advent of Effective Medications (1950’s)

• Community Mental Health Act (1963)

• Civil Rights Reforms: lawsuits over poor care; stricter commitment laws (1960’s, 1970’s)

• Cost of Care: meeting heightened standards, Medicaid reforms/ IMD rule

• Use of Private Facilities for Some Public Patients; Managed Care

Prevalence of Serious Mental Illness in U.S. Jails (Psychiatric Services, June 2009)

• Men: 14.5%• Women: 31%• Overall: 16.9%

Note: Inmates in this study did not necessarily have symptoms suggesting a need for hospitalization (Osher, personal communication, 2009); 72% have co-occurring substance use disorders

Note: Mental illnesses range in severity: 26% of general population has a MI; 6% has a serious MI (NIMH)

Note: 2013 survey found 13.2% with a serious MI in Virginia jails; an estimated 10% more had a diagnosable DSM disorder, including personality disorders (Va. State Compensation Board); 2007 study found 7.5% with serious MI in MD jails

Public Response: Call for Enhanced Services

• Council of State Governments Criminal Justice/Mental Health National Consensus Project (2002 Report, Ongoing Work of CSG Justice Center)

• SAMHSA Funding for Jail Diversion Programs (GAINS Center)

• Mentally Ill Offender Treatment and Crime Reduction Act

• Intervention at Every Opportunity: “Sequential Intercept”

Forensic Services in 2014: Survey of the States (NASMHPD, SAMHSA)

• Scope of Forensic Services: Issues; Data

• Funding Questions

• PMHS Control over Resources (especially beds)

• States’ Responses to Public Outcry over Disproportionate Numbers of People with MI in Justice System

Responses from 40 States Plus DC (and 2 partial responses)

AL ID MS OR

AK IL MO PA

AZ IN MT SC

AR KS NE SD

CO LA NV TN

CT ME NJ TX

DE MD NY UT

FL MA NC VA

GA MI OH WI

HI MN OK WY

General Findings

• Issues Pretty Similar State to State

• Many System Commonalities (credit NASMHPD Forensic Division)

• Some Striking Variations

• Some Interesting Innovations

Survey Results Reported Here

• Selected Findings, Major Issues

• More in the Report (Including Raw Data)

• Further Analysis in 2015 Possible

Competency to Stand Trial: Evals

• PMHS evals in 38 of 43 states (others private)

• Number of Evals (PMHS)– 1-50: 2 states– 51-200: 4 states– 201-600: 11 states– 601- 1,000: 2 states– 1,001- 1,500: 6 states– 1,501- 2,000: 4 states– 2,001+: 5 states

Locus of CST Evals: Inpatient Percentages

• 0-10%: 12 States [12 of 32 do >90% out-P]• 11-25%: 7 States• 26-50%: 7 States• 51-75%: 3 States• 76+%: 4 States• Range: <2% (9 states)- >95% (3 States) [Only 7 of 32 do >half in-P (22%)]

May Court Require Inpatient CST Eval?

• Yes: 79%

• No: 21%

• Some States Report Increasing Demand for Inpatient Evals (e.g., 89% increase 2010- 2013 in OR)

ALOS for CST Inpatient Evals

• 0- 1 month: 12 States

• 1- 3 months: 11 States

• 3- 6 Months: 6 States

• > 6 Months: 1 State

Does PMHS Have Authority to Discharge When Evaluation Done?

• Yes: 43%

• No: 57%

Who Funds CST Evals?

• Inpatient Evals– PMHS: 84%– Court: 5%– Other: 11% (e.g., counties, PD)

• Outpatients Evals– PMHS: 65%– Court: 19%– Other: 16% (e,g., counties, PD)

Services to Restore Competency to Stand Trial

• Does the PMHS Provide CST Restoration Services?– Yes: 40 states – No: 1 state (MA: No legal requirement, though facilities sometimes provide

legal education for IST defendants who may be civilly committed)

• # of Defendants Referred Annually for Services– 0- 50: 5 states– 50- 100: 5 states– 100- 200: 9 states– 200- 300: 7 states– 300- 500: 5 states– >500: 4 states (1,540 in FL)

[Even spread. Note FL judge (doesn’t care about CST)]

Locus of CST Restoration Services

• % Served Inpatient (initially)– 0- 50%: 1 state (AR) [> half out-P]– 51- 75%: 8 states (several report 75%)– 76- 90%: 5 states– > 90%: 20 states (many report 100%)[so most still do competency CST restoration in-P]

• Where are In-P Services Provided?– Dedicated forensic facility: 25 states – Dedicated Forensic Unit in Gen’l PMHS facility: 22 states– Ordinary Unit in Gen’l PMHS Facility: 17 states– Private MH Facility: 4 states– MH Facility Operated by Jail/Prison System: 3 states

Average Daily Census of IST Inpatients

• 0- 25: 8 states• 26- 75: 7 states• 76- 150: 9 states [most states @ 100]• 151- 250: 3 states• 251- 400: 3 states• > 400: 2 states (each with > 1,000)

Defendants Who are “Unrestorable” to CST

• Courts in Every State Find Defendants Unrestorable (100%) [Jackson: release or civil commitment]

• Outcome When a Defendant is Found Unrestorable– Release or ordinary civil commitment, with no further criminal court involvement:

18 states (49%)– As above, but with continuing criminal court involvement (incl requirement that

court approve release): 9 states (24%)– As above or, in some cases special commitment by different standards and

procedures, w/ cont’ criminal court oversight (may be preceded by finding of factual guilt): 6 states (16%)*

– Continued treatment to restore (despite finding of unrestorability): 1 state (3%)

* Special commitment preceded by finding of factual guilt approved by appellate courts in at least 2 states. [OH, NM] Endorsed by ABA CJ/MH Standards

Defendants Who are “Unrestorable” to CST, Cont’

• Is there a specific time limit on inpatient services to restore CST?– Yes: 27 states (69%) (ranging from 90 days- max sentence) – No: 12 states (31%) (only Jackson v Indiana limit of

“restorability in the foreseeable future”)

• ALOS for Inpatient CST Restoration– 0- 60 Days: 5 states– 60- 120 days: 13 states [most 2-4 months]– 120- 180 days: 7 states – 180- 360 days: 3 states– > 360 days: 2 states

PMHS Control Over Admission of IST Defendants

• May Court Insist on Inpatient Services?– Yes: 36 states – No: 1 state

• May PMHS Discharge IST Patient (without Court Authorization) When It Believes Patient CST or No Longer In Need of Inpatient Services?– Yes: 10 states (26%)– No: 29 states (74%)

Funding For CST Restoration Services

• Who Funds Inpatient CST Restoration Services?– PMHS: 35 states (92%)– Court: 0 States– Other: 3 states (8%) (e.g., county)

• Who Funds Outpatient Services?– PMHS: 15 states (65%)– Court: 1 State (4%)– Other: 7 states (30%)

• Medicaid for Outpatient Services?– No: 29 states – Yes: 1 state– Note: Some states say they collect Medicaid for ordinary MH services

that may be ancillary to CST restoration

CST in Juvenile Court?

• An Issue in Your State?– Yes: 37 states (90%)– No: 4 states (10%)

• Does your PMHS do Evals?– Yes: (21 states) 57%– No: (16 states) 43%

Juv Court CST Evals• Numbers

– 0- 30: 5 States– 31- 60: 4 States– 61- 100: 3 States– > 100: 6 States (1 with 450) [GA?]

• % Conducted Inpatient– 0- 10%: 14 States [14 of 18 states do >90% out: 78%]– 10- 25%: 2 States– > 25%: 2 States (none >75%) [only 2 >25% in-P]– Note: Ct may require in-patient eval in 67% of states; only 13%

have discretion to discharge on own

Who Funds Juv Ct CST Evals?

• Inpatient: 93% PMHS; 7% Court• Outpatient: 61% PMHS; 39% Court• Note TN’s experience

Competency Restoration for Youth in Juv Court

• Does the PMHS Provide Services (in responding states with CST in Juv Ct)?– Yes: 17 states (55%)– No: 14 states (45%)

• Referral numbers mostly small (< 30/yr)• Locus of Services– Almost all outpatient: 7 states– Almost all inpatient: 4 states

Medicaid or CHIP for CST Restoration Services in Juv Ct?

• Inpatient Services– Yes: 2 states (22%)– No: 7 states (78%)

• Outpatient Services– Yes: 1 state (8%)– No: 11 states (92%)[mostly no—kids often IST b/c of immaturity/developmental delay]

Insanity Defense in Adult Criminal Court (NGRI)

• Available in Your State?– Yes: 41 States– No: 1 State– Note: NGRI defense officially “abolished” in 3 of the states

reporting “yes” [abolished MT, ID, UT, KS; 3 states do it anyway, or alternatives indistinguishable]

• Does PMHS Do NGRI Evals?– Yes: 31 States (including the 3 abolition states)– No: 10 States (done privately) [$ to defense to retain]

Number of NGRI Evals by PMHS (Annually)

– 0-25: 4 States [most states @ 200-300]

– 26-100: 5 States

– 101- 600: 3 States

– 601- 1,000: 4 States

– 1,001- 1,500: 3 States

– > 1,500: 4 States

NGRI Evals: Locus; ALOS

• % Done Inpatient– 0- 10%: 9 States [9 of 24 do > 90% out-P]– 11- 25%: 3 States– 26- 50%: 4 States [16 of 24 (2/3) do > half out-P]– 51- 75%: 2 States– > 75%: 6 States [but ¼ still do ¾ in-P]– Note: Ct may require in-p eval in 81% of states; only 50% of states have discretion to discharge after eval

• ALOS for Inpatient NGRI Evals– 0-30 Days: 12 States [shorter than CST because no 2nd agenda here]– 31- 60 days: 4 States– 60- 90 Days: 1 State– 90- 120 Days: 0 State– > 120 days: 4 States

NGRI Evals: Funding

• Who Funds Inpatient Evals?– PMHS 83%– Court 7%– Other 10% (e.g., counties, PD)

• Who Funds Outpatient Evals?– PMHS 62%– Court 28%– Other 10%

Services for Persons Found NGRI in Adult Criminal Court

• State have special commitment procedure for NGRI acquittees?– Yes: 37 states (95%)– No: 2 states (5%)

• PMHS provide inpatient services for acquittees under special NGRI commitment?– Yes: All 37 states (100%)

• Where are inpatient services provided? [Only PMHS facilities]– Dedicated PMHS forensic facility: 24 states (65%)– Dedicated forensic unit in gen’l PMHS facility: 18 states (49%)– Ordinary unit in gen’l PMHS facility: 18 states (49%)– Private facility: 0 states– Facility operated by jail/prison system: 0 states

Placement When There are Competing Court Commitments

• Person serving sentence for 1 crime when found NGRI of another– Committed to NGRI facility in all cases: 9 states (26%)– Remains in jail/prison to complete sentence: 10 states (29%)– Depends– remains in jail/prison if necessary services avail there, otherwise

goes to NGRI facility: 10 states (29%)– Other: 5 states (15%)

• Person in NGRI facility when sentenced for another crime– Remains in NGRI facility in all cases: 1 state (3%)– NGRI facility unless conditionally released to jail/prison: 5 states (15%) – Goes to jail/prison to serve sentence: 15 states (44%)– Depends– goes to jail/prison if necessary services avail there, otherwise

remains in NGRI facility: 11 states (32%)– Other: 2 states (6%)

Number of Inpatient PMHS NGRI Cases

• # of NGRI inpatient commitments annually– 0-10: 14 states– 11-30: 9 states– 31-60: 6 states [numbers generally small (50) compared to IST, but….]– 61- 90: 3 states– > 90: 1 state

• NGRI Average Daily Inpatient Census– 1- 20: 8 states– 21- 50: 7 states– 51- 100: 2 states [100 most states, many more in a few—10 states > 200]– 101- 200: 5 states– 201- 400: 8 states– > 400: 2 states

ALOS for NGRI Inpatients

• 0- 1 yr: 2 states• 1- 3 yrs: 9 states (several report 3 yrs)• 3- 5 yrs: 3 states• 5- 7 yrs: 5 states• 7- 10 yrs: 6 states (several report 10 yrs)• > 10 yrs: 2 states [Most 3-10 yrs, varies by offense]

Discharge of NGRI Inpatients

• Does the PMHS have discretion to discharge without court order?– Yes: 4 states (11%)– No: 32 states (89%)

• Ranking of obstacles to release– Opposition from court or prosecutor: 3.62 (of 5)– Unavailability of housing: 3.34 (of 5)– Risk assessment scores: 2.88 (of 5)– Unavailability of treatment resources: 2.65 (of 5)– Opposition from the community: 2.44 (of 5)

Conditional Release (CR): Available in Your State?

–Yes: 31 states (84%)

–No: 6 states (16%)

Census on CR

• 0- 10: 5 states• 11- 50: 3 states• 51- 150: 5 states [most around 100]• 151- 300: 3 states• 301- 500: 7 states• > 500: 1 state (>700 in MD; CA reputed to be >

700 as well)

Re-admission from Conditional Release

• % re-admitted annually– 0- 10%: 16 states– 11- 20%: 6 states– 21- 50%: 2 states– > 50%: 2 states [most re-admit @ 10%, most not revoked]

• % of re-admits revoked from CR– 0- 10%: 12 states– 11- 25%: 4 states– 26- 40%: 1 state– 41- 60%: 2 states– > 60%: 3 states

Much More on CR…

…in the report (e.g., 71% of states collect Medicaid for services provided to acquittees on CR– a consequence of NASMHPD lobbying years ago).

NGRI Defense in Juvenile Delinquency Cases (Juv Ct)

• Available in Your State?– Yes: 44%– No: 56%

• Does PMHS Do Evals (in states w/ NGRI in Juv Ct)?– Yes: 45% (But numbers small)– No: 55% (e.g., private evals, juvenile justice agency

evals)

Services for Youth Found NGRI in Juvenile Court

• Does your law provide special commitment procedures for juvenile court NGRI acquittes? [about half]– Yes: 11 states (48%)– No: 12 states (52%)

• Does your PMHS provide inpatient services for juvenile court NGRI’s on special commitment?– Yes: 8 states– No: 2 states

• # of juvenile court NGRI inpatient commitments annually ranges from 0- 3; average daily census ranges from 0- 9

Guilty But Mentally Ill (GBMI)

• GBMI Verdict Available?– Yes: 15 States– No: 26 States

• Does PMHS Do GBMI Evals (distinct from NGRI evals)?– Yes: 6 states– No: 9 states

• Numbers of Evals Generally Small

Outcomes for Persons Found GBMI

• Most Common Outcomes (14 states responding)– Inpatient commitment to MH facility (plus criminal sentence): 2 states

(14%)– Ordinary criminal sentence/placement (including possibility of

probation with treatment): 10 states (71%)– Other: 2 states (14%) (e.g., stabilization in PMHS facility, then ordinary

sentence/placement)

• Criteria for Inpatient Commitment (11 states responding)– No additional criteria (finding of GBMI sufficient): 4 states (36%)– Ordinary civil commitment criteria: 1 state (9%)– Special commitment criteria (similar to NGRI): 1 state (9%)– Other: 5 states (45%) (e.g., requires stabilization)

Sex Offender Commitment (SVP) Evaluations

• Does Your State Have an SVP Commitment Law?– Yes: 15 states (38%) [20 plus federal courts (Adam Walsh)]– No: 25 states (62%)

• Does the PMHS Do SVP Commitment Evals?– Yes: 7 states (47%)– No: 8 states (53%)

• # of Evals/ Yr: Ranges from 20- 470

• 3 States Do Nearly All Evals Out-P; 4 Do Nearly All In-P

Services for Specially Committed Sex Offenders (SVP’s)

• Does PMHS provide services?– Yes: 12 states (of 15 w/ SVP laws)– No: 3 states

• Where are Inpatient Services Provided?– Dedicated PMHS facility: 10 states– Dedicated unit in PMHS facility: 1 state– Dedicated facility operated by prison system: 2 states

• Who funds inpatient services?– PMHS: 8 states– Prison system: 2 states– Other: 2 states

Annual Per-resident Cost to PMHS for Inpatient SVP Services

• 0- $50,000: 1 state ($40K)• $50,000- $80,000: 1 state• $80,000- $110,000: 3 states [Most @ $100]• $110,000- $145,000: 0 states• > $145,000: 2 states ($150K and $175K)

Number of Individuals Committed as SVP’s

• Annual Commitments– 0- 10: 2 states– 11- 30: 4 states [average @ 50—but like NGRI’s, they pile up]– 31- 60: 4 states

• Daily Census– 0- 50: 1 state– 51- 200: 3 states– 201- 300: 2 states [200-300]– 301- 400: 2 states– 401- 500: 1 state– > 500: 2 states

ALOS and Release of SVP’s

• # of SVP’s Released from Inpatient Commitment Annually:– 0- 10: 6 states– 11- 20: 3 states– 21- 30: 3 states– > 30: 0 states

• ALOS (for those who have been released);– 0- 3 yrs: 1 state– 3- 6 yrs: 4 states [most @ 5 years]– 6- 9 yrs: 2 states– > 9 yrs: 2 states

SVP’s on Conditional Release (CR)• Does law provide for CR of SVP’s?

– Yes: 9 states– No: 2 states

• SVP Census on CR– 0- 5: 4 states– 6- 25: 0 states– 26- 60: 2 states– 61- 90: 2 states– > 90: 1 state

• Cost to PMHS of Services for an SVP on CR (4 responses)– $24,000– $80,000– $85,000– $116,000

Inpatient Services for Sentenced Offenders

• Does PMHS provide inpatient services? [20 of 41 states]– Yes, in facilities used for other PMHS patients: 10 states– Yes, in PMHS facilities or units dedicated for sentenced

offenders: 7 states– Yes, in facilities operated by jail or prison system: 3 states– No: 21 states

• Only 5 states permit courts to sentence offenders to inpatient facilities, but many accept committed prisoners

• Vast majority of states allow facility to discharge offenders (back to jail/prison) when stable

Services for Juveniles Adjudicated Delinquent

• Does the PMHS provide inpatient services? [yes 31%]– Yes, in facilities used for other PMHS patients: 8 states (25%)– Yes, in facilities or units dedicated for adjudicated delinquents: 1

state (3%)– Yes, in facilities operated by the juvenile justice system: 1 state

(3%)– No: 20 states (62%)– Other: 4 states (13%) (e.g., private facilities)

• 50% of states provide community-based services for adjudicated delinquents on probation or parole

• 80% of inpatient facilities, 75% of community providers collect Medicaid/CHIP for these youth

Who Provides Off-grounds Transportation of Forensic Inpatients?

• The facility/ PMHS in all cases: 9 states (23%)

• Justice system in all cases: 1 state (3%)

• Justice system in connection with court case; facility/PMHS otherwise: 17 states (43%)

• Justice system in connection with court case but only for individuals admitted for evaluation; facility/PMHS otherwise: 3 states (8%)

Prosecution of Forensic Patients in PMHS Facilities

• Never or almost never prosecute unless crime very serious: 9 states (23%)

• Always or almost always prosecute unless crime very minor: 2 states (5%)

• Prosecute only if victim insists, crime very serious, or PMHS determines conduct not manifestation of SMI: 23 states (58%)

Demand for Forensic Services

• Has demand increased in recent years?– Yes, a lot: 21 states (54%)– Yes, moderately: 8 states ((21%)– Yes, a little: 6 states (15%)– No, about the same: 4 states (10%)– No, decreased: 0 states (though CT reports reduced demand for

inpatient services)

• Does PMHS have waiting list for inpatient forensic admissions?– Yes: 31 states (78%)– No: 9 states (23%)– Note: Most wait lists ~30 days, but 6 mos- 1 yr in 3 states

Demand for Services, Cont’

• Measures Taken to Decrease Wait Time:– Increased outpatient forensic services: 19 states (61%)– Added beds: 14 states (45%)– Added facility staff: 11 states (35%)

• PMHS Threatened with or Found in Contempt for Delayed Admissions?– Yes: 19 states (50%)– No: 19 states (50%)

State’s Concerns About Large Presence of People with MI in the Justice System

• Very Strong: 26 states (65%)

• Somewhat Strong: 12 states (30%)

• Not Very Strong: 1 state (3%)

• Not at all: 1 state (3%)

Measures Taken to Address Concerns Above

• Meetings of MH and CJ leaders: 37 states (97%)• PMHS staff hired/ tasked to develop initiatives: 18 states (47%)• Pursue grants: 16 states (42%)• Increased law enforcement training: 33 states (87%)• Establish CIT Programs: 31 states (82%)• Establish/expand PMHS crisis teams: 27 states (71%)• Establish pre-booking diversion programs: 17 states (45%)• Establish jail-based diversion programs: 16 states (42%)• Establish MH Courts (or similar): 31 states (82%)• Additional PMHS for jail services: 9 states (24%)• Establish re-entry programs: 22 states (58%)• Legislation re above: 14 states (37%)

Administration of Forensic Services

• Who has Primary Administrative Responsibility?– Forensic Services Director with exclusive responsibility for forensic services: 20

states (53%)– Facility Director: 4 states (11%)– PMHS admin staff with other responsibilities: 9 states (24%)

• How Many Staff Dedicated to Administration of Forensic Services?– 0- 5: 13 states – 6-10: 3 states– 11- 20: 6 states– > 20: 6 states (one with 2,700)– Frequent Comment: “Define Administration!”

Discussion

• Promising Developments?

• Suggestions for Further Analysis

Thank You

W. Lawrence Fitchfitchwillard@gmail.com

lfitch@law.umaryland.edu410-507-4356