The Law and Mental Illness

Copyright 2007 (all rights reserved)

By Rudy S. Apodaca

A Presentation for an NMSU Video on Police Officer Training

Part I

    In 1955, there were about 560,000 people in state psychiatric hospitals throughout the United States. Today, there are fewer than 50,000. Adjusting for growth in population, had the commitments to state hospitals held in 1955, there would now be more than 900,000 persons in state hospitals.

    Then something happened to change that. In 1972, the U. S. Supreme Court decided the case of Jackson vs. Indiana. That case effectively shut down mental hospitals and insane asylums across the country.

    As a result, there are today some 450,000 homeless people in the U. S.; about a third of these are mentally ill. In addition, roughly 16 percent of prisoners held in jail are mentally ill.

    So the situation of the homeless and the incarcerated as it exists today was the unintended consequence of the ruling in Jackson.

    This dilemma facing the country has given rise to strong opinions that we are mistreating our mentally ill. A friend in New York City once told me that he came across the mentally ill every day. He stepped over them in the streets, looked the other way as they rummaged through trash bins in some alley, and paid no attention to their ravings.

    A critic once complained that although on street corners all over the U. S., “very sick people are left to rot,” the federal government ignored the problem by not addressing it in a written report issued by the President’s Commission on Mental Health. He contended that most of the mentally ill roaming the streets are too sick to know they are sick and claimed that roughly fifty percent of schizophrenics and those with bipolar disorder don’t know they are mentally ill. “If treatment is left as an entirely voluntary choice,” he stated, “as it has been [in the past], these people will choose continued illness and misery.” His solution was to fund and build facilities where such individuals can be treated involuntarily.

    Whether the mentally ill roaming the streets should be treated involuntarily is today a heavily debated issue. The ACLU, for example, maintains that there exists a right to be an untreated schizophrenic.

    No matter where one stands on the question, one glaring fact exists in communities all over the country. Until reforms in the law take place in your jurisdiction, it will be necessary for you, as peace officers, to cope with this difficult issue. You can do so more effectively if you become trained in dealing with the mentally ill you’ll come in contact with in your work. My comments are offered to help you understand the law as it applies to them.

    I first suggest that you familiarize yourself with the laws in your jurisdiction on mentally ill persons, not only as criminal defendants but in civil proceedings seeking commitment. In my own jurisdiction, for instance, we have the Mental Health and Developmental Disabilities Code, which applies to mentally ill adults and the Children’s Mental Health and Developmental Disabilities Act, which of course applies to juveniles. There is also Article 9 (entitled Mental Illness and Competency) of our jurisdiction’s statutory chapter on criminal procedure, which sets out the procedures for dealing with the issue of competency, whether at time of commission of the crime, at time of trial, or at sentencing.

    Section 10 of our Code deals with emergency mental health evaluation and care, under which a police officer is authorized to detain and transport a person for emergency mental health evaluation and care in the absence of a valid court order under certain situations. One of these is if the officer, based on his own observation and investigation, has reasonable grounds to believe that the person, as a result of a mental disorder, presents a likelihood of serious harm to himself or others and that immediate detention is necessary to prevent such harm. The Act pertaining to children or juveniles has similar provisions.

    Your jurisdiction has laws that serve the same purpose, and you should read up on their requirements. The important point I want to stress here is that there are alternatives available to you other than putting someone you believe has broken the law in jail. Jails are usually ill-equipped, if at all, to treat the mentally ill. It’s up to you to assess whether any of these statutory provisions apply and to handle the person you’re dealing with accordingly.

    Law enforcement officers should also be aware of available facilities and services at the local level: community mental health services; children’s psychiatric facilities; state hospitals for the mentally ill; adolescent treatment facilities or services. Concerning children, you should review the requirements outlining a peace officer’s responsibilities involving emergency mental health evaluation and care of children, such as the provisions under the Children’s Mental Health and Developmental Disabilities Act in my own jurisdiction. Our federal constitution and all state constitutions afford certain rights to our citizens, including due process, equal protection, assistance of counsel, and the right to a fair trial. These rights are premised on fairness and civility. Because a mentally ill person has all of these rights, his illness must be taken into account throughout the judicial process to assure these rights are protected, including the giving of special considerations in competency determinations.

    If our laws provide these rights and allow special considerations for the mentally ill, why should the same sense of fairness and human decency not apply to assure that these protections are accorded to them from the beginning of a case – the moment a police officer first makes contact with him?

    For that to happen, police officers owe it to themselves, to the public, and to their employer to know generally the symptoms of mental illness. They shouldn’t hesitate asking questions of the individuals they come in contact with, their families, or their friends to determine if special treatment is necessary. Essentially, a police officer should perform a balancing test. On the one hand, he should assess the situation with the aim of protecting himself from danger, while on the other hand preserving and respecting the rights of the individual encountered in any given situation.

    I believe that if an officer trains himself for encounters with the schizophrenic or a person suffering from bipolar disorder, he’ll be better equipped to lessen the dangers to himself, to the mentally ill person, and to others. I say this because the dilemma of the mentally ill has given rise to many unfortunate incidents. I’d like to mention a couple. Some of you may be aware of other cases in your own state.

    One of the cases occurred in Seattle, Washington. A friend who lives there told me of an incident in which a policeman was dispatched to a neighborhood where a naked man was seen running in the streets ranting and raving. The officer confronted him, shouts were exchanged, and the officer began struggling with the man. In that struggle, the man got hold of the officer’s weapon and shot him dead. The officer had a wife and two children.

    Another case occurred in Albuquerque, New Mexico, in July of 2003, and I’ll spend more time on it to emphasize the problem. In that case, an Albuquerque policewoman tried to arrest a mentally ill man. In the struggle that ensued, the man threw the officer to the ground, took her gun, and shot her. He then walked down the street wildly firing the pistol over his shoulder until police later arriving at the scene were forced to shoot and kill him.

    In the aftermath, the local press revealed the man’s mental illness and his extensive arrest record for non-dangerous property crimes. The public rightly asked, “How can this be? How can someone mentally disturbed like this man be arrested time after time only to be released back on the street by a judge?” Some asked bitterly, “Is the county jail merely a hotel that a mentally ill person can check into and out of at will?”

    The Chief Judge of the county’s District Court, to make the public aware of the problem faced by the mentally ill in the courts, wrote a column in a daily newspaper. He answered the question I just posed about whether the county jail was merely a hotel by stating, “As shocking as it may be to the general public, the answer is ‘Yes.’”

    He then went on to explain the unfortunate history of the mentally ill man. The judge complained that under present state law, a judge was extremely limited in what he could do with an incompetent person who had broken the law “but had not done so in a ‘dangerous’ way.” He suggested a solution. “The legislature,” he said, “should change the law to allow judges the ability to send incompetent offenders into a mental health system that is set up to help them.”

    This idea isn’t new. Other states have incorporated these changes into its laws, as New York has done. Under the new law, New York saw an 86 percent reduction in incarcerations and an 83 percent reduction in arrests of the mentally ill. Dr. E. Fuller Torrey, who presently works on the problem, has pointed out: “People who are rendered incompetent by severe mental illness need treatment based on need, not dangerousness.” As I understand Dr. Torrey, what he means is that society shouldn’t wait until the mentally ill person becomes dangerous, endangering his own life or the lives of police officers or others. Instead, these individuals should receive treatment for their illness long before that danger exists, as occurred in the two cases I just noted.

    These cases also serve to stress another important point – police officers should be aware of the potential dangers to themselves when coming in contact with a mentally ill person. Both the situation and the person must be handled differently from the usual case.

Part II

    I believe that to understand how the law applies to mentally ill persons, one must know something about the way the law imposes responsibilities on our citizens.

    First, bear in mind that a mentally ill person had no choice in developing a mental illness no more than he had in choosing his eye color. Some are born with a gene that causes the condition. Often, such illness results from some kind of emotional or even physical trauma, such as a blow to the head.

    Generally, the law is premised on the concept that all persons are responsible for their actions or inactions. But in holding everyone accountable, the law presupposes or assumes that the person acted on his own volition; that he made a bad choice willingly. And, as you know, the law makes important exceptions involving crimes.

    When a criminal defendant’s mental condition or competency is placed at issue in a case, this issue comes directly to bear on whether a defendant should not pay the consequences for actions that would otherwise be punishable as violations of law. If under the test for competency or legal insanity, the defendant is found incompetent, he cannot be held responsible for his actions. If he’s found competent, then and only then will he be held accountable.

    When determining whether a person is to be held responsible for allegedly breaking a particular law, we must consider some rhetorical questions: What is reality? Or, we might ask, “What is real?” What does it mean to be aware of something that is real? Is something real in this world because we’re able to see it, touch it, and smell it? Or is what we know as reality in life only some kind of illusion or trick played on us by God or some higher power?

    Asking these provoking questions brings to mind a philosophical one posed by an ancient Greek dramatist, Euripides, who said, Who knoweth if to die Be but to live . . . And that called life By mortals Be but death?

    I’ll state yet another query: From whose point of view are we seeing reality? When performing your duties as police officers, you may come across a situation in which your own reality may not be the reality of the person you’re confronting.

    Asking these questions brings us essentially to what mental illness does. It affects the mind’s processing of what the mentally ill person senses as reality. What he sees; what he hears. Equally important, why things he sees happening are happening. It also affects his perception of what to him was the past, as well as any conclusions he may have drawn from past events as he perceived them in his own world. All of these taken together, even if delusional, are what make up the reality of the mentally ill.

    There is a philosophical question by an unknown author that symbolizes why a mentally ill person who commits an act might not be found guilty of a crime when the same identical act committed by a defendant who is not mentally ill would be considered a crime. Is man a shipwrecked sailor on a rudderless vessel at the whim or mercy of whatever wind may blow, or is he the captain of his own soul? Which is the mentally ill person? The shipwrecked sailor or is he the captain of his own soul?

    And in considering what is real, don’t lose sight of the possibility that you, yourselves, in investigating a crime scene or disturbance, may be mistaken about what you think you see and hear. The mind can play tricks on us. Stresses alone created by a confrontation can affect our observations.

    To illustrate, I’ll mention a few unfortunate incidents that have occurred. One of them happened in the Bronx, New York, and made national news mostly because the police officers involved were accused of racial profiling in what took place. You may recall the case. It involved the shooting of Amadou Diallo by four cops in front of his own apartment building. He was gunned down by a hail of bullets when the four officers mistook his wallet for a gun.

    There was another sad case in Arizona where a highway patrolman stopped a driver on the highway. As the driver approached the officer’s vehicle, he placed his right hand behind him to take something out of his pocket. The officer believed he was going for a gun and shot him dead. Afterward, the dead motorist lying on the side of the highway still held in his hand a worn-out card identifying him as a deaf-mute.

    I’d like to touch briefly on the public’s perception of mental illness. It is still considered a stigma by many, rather than a fact of life. In addition, the public generally takes a dim view when a criminal defendant argues mental incompetence or illness as a factor in whether he should be held responsible for his actions.

    I’ve come to believe that the public has to be reminded that if one of their own (a family member, a loved one, a friend) were to suffer from mental illness, then they would better appreciate the world of the mentally ill. They would not be so likely to criticize and condemn a system that requires the safeguards for the victims of mental illness. Then they might understand that there are good and valid reasons to apply these safeguards; they aren’t mere technicalities.

    There will undoubtedly be times when you’re called to testify in a criminal case. It may be one in which you will have concluded in your own mind, based on what you know of the facts, that the defendant committed the offense and that the jury should find him guilty. That’s understandable; we’re all entitled to our opinions. But if the police officer isn’t careful, forming such opinions can hurt his objectivity, which can create a problem of credibility for him before the jury.

    This problem can be especially troublesome in a case involving a mentally ill person, where the competency or sanity of a criminal defendant is at issue. The officer, believing that he knows the facts of the case well, may have concluded that the insanity plea has no merit. If he’s formed that opinion, the risk is high that it will affect the substance of his testimony. He would do better if he stuck to the facts and left the opinions to the medical experts.

    So my advice to you – don’t go there. Don’t ever try to second guess the judicial process, whether the case involves a mentally ill person or not. It’s not worth it. Let the system do its job. Let the attorneys, the judge, the medical experts, and the jury do theirs, based on what genuinely is believed to be the truth and the medical facts in the eyes of the experts. And when the case is over, regardless of whether in your opinion the outcome is right or wrong, you must both respect and accept the final decision. Our system of justice isn’t perfect, but in my view, it’s the best judicial system in the world, no matter its flaws.

    Based on my experience, I’d say that the majority of criminal defendants who are tried for a crime and are found guilty are in fact guilty. But it’s equally true that there are some defendants who are tried and found guilty who are in fact innocent.

    Wouldn’t it be nice if the guilty were always found guilty and the innocent were always found innocent? But that just isn’t the way things work. Sadly, the guilty will sometimes go free. It is the price we pay for safeguarding everyone’s rights. But even more unfortunately, there will always be innocent persons who will be found guilty in our justice system.

    The most egregious of these cases, of course, are the ones you’ve undoubtedly read about in the newspapers. The prisoner who’s been incarcerated for some ten or twenty or possibly thirty years is finally freed because recent DNA testing has shown conclusively that he didn’t commit the crime. The same has occurred in cases in which a witness on whose testimony the conviction was principally based now recants and tells a different story. Or cases where someone else, years later, is arrested and confesses to the previous crime for which the person serving time was convicted.

    Simply because we hear of repeat offenders who are caught and convicted time and time again, there arises a perception that persons wouldn’t be charged with a crime unless they’re guilty of something. So when the public reads or hears of someone being found not guilty, more often than not it will question the verdict, especially if the evidence was evenly disputed.

    Nowhere among the cases where the public questions a “not guilty” verdict is this truer than in those in which the temporary insanity defense is raised or defense counsel argues lack of specific intent due to some mental defect or mental illness.

    There’s another good reason why the public understandably questions such verdicts. Too often, mental illness, competency, or some other mental condition, is used as a defense by defendants and their lawyers when such defenses lack merit. In other words, the defendant’s attorney really stretches credibility and argues mental illness in a long list of justifications or excuses for a defendant’s otherwise criminal conduct. The ordinary citizen looks down with disfavor on such tactics with little or no merit.

    When this happens, I propose, those defendants who genuinely suffer from a mental condition (and the facts of the case suggest that defendant may not have been responsible) become victims of the false public perception. There are those who might conclude that a defendant is falsely arguing a technicality to get off, even though the defense clearly has considerable merit.

Part III

    Judges are often called to rule on issues that will affect not only the lives and well-being of those who come before them in a particular case but others not directly or even remotely involved, even for years to come. This is because court rulings become the precedents for future cases. Yet, much to the dismay of the public, judges aren’t all-knowing and all-powerful, even though they constantly struggle to decide cases and approach issues they realize will have serious and long-standing consequences on the lives and welfare of many people. As a result, judges make mistakes and in that way contribute to the imperfections of our system.

    Although we’ve worked hard in the judicial process and in creating our laws in this country to assure that they afford the mentally ill due process of law, we still have a long way to go. Our system hasn’t always worked as it should to protect the rights of persons suffering from mental illness.

    Having said that, I caution you that our courts can’t possibly provide every answer to every human condition or social ailment. There are no “fix-it-all” solutions to what are often complex legal and social problems.

    Can our judiciary and the judicial process be all things to all people? With respect to addressing social ills, the “jury is still out” on the verdict of whether our judicial system is working.

    As a Court of Appeals judge, I handled many appeals involving the mentally ill. One of them, In the Matter of John D., hit a chord with me on the issue of whether in applying our laws, we can solve all of society’s problems.

    This was a case in which a mother appealed the termination of her parental rights to her child, John D. She claimed on appeal that a federal law, the Americans with Disabilities Act, known as the ADA, required the state to provide her with programs and services that would help her be a better parent. She had a long history of chronic mental illness, having been diagnosed as paranoid schizophrenic or as suffering from schizoaffective disorder, bipolar type.

    The state filed various abuse and neglect petitions, alleging that the child feared his mother because of her abuse and neglect. She was once found in the cafeteria of a mental facility where she was a patient force-feeding the boy until he vomited. As a result, she became upset, asked the child whether she was going to have to kill him, and then took him into the restroom where she was seen striking him repeatedly.

    In an opinion I authored, our court affirmed the lower court’s termination of parental rights, holding that the mother couldn’t qualify as a handicapped individual under the federal law, one reason being that she repeatedly refused to take her medications, making it impossible for the state to work with her.

    I quote from the closing paragraphs of the opinion:

    “. . . [W]e are mindful of this case’s tragic course. We also realize the “Catch-22” dilemma faced by those individuals involved in this case . . .

    “This appeal demonstrates the futility we may often experience when our laws prove inadequate or imperfect in addressing certain social problems. The social motives behind both the federal and state laws discussed in this opinion are good ones. Nonetheless, it sometimes happens that, in trying to address legislatively the problems of our society’s less fortunate, we clearly reveal that our laws cannot always adequately, much less successfully, address every human condition.”

I’m reminded of a song from the award-winning Broadway musical play and movie, West Side Story. The story takes place in New York City amidst the racial strife and tensions between WASP teenaged gang members and their counterparts in the Puerto Rican culture found in the city.

    In an opening scene, a police officer, Officer Krupke, approaches a gang hanging out in the streets. The officer suggests that they get on home or get a job before they get themselves in trouble. Later, mimicking the policeman, as often happens in musicals the teenagers break out in a song entitled Gee, Officer Krupke.

    In the song, the policeman refers a teenager to the prosecutor; the teenager goes before a judge, who refers the child to the juvenile probation officer who refers him to a “shrink” who refers him to a social worker who refers him back to the judge, the vicious circle starting all over again. As a law enforcement officer, what role, if any, will you play in this vicious circle? Will you rise to the challenge of trying to stop a victim of the system from going round and round? If you want to do that, I urge you to learn as much as you can about mental illness. Doing that will be but a first step in helping the best judicial system in the world become even better.

    As a final thought, I offer one person’s idea of what the world of the schizophrenic might be like. I’ll quote dialogue from a teleplay entitled The Promise, starring James Garner and James Wood. Wood played the part of a character who suffered from schizophrenia, and Garner, an older brother who reluctantly promised his mother on her deathbed that he’d take care of his brother when she was gone.

    In that setting, Bobby, the character played by Garner, was having a difficult time coping with his brother’s illness. He found it hard to keep his promise to his dying mother. There was a scene in which Bobby doesn’t quite understand why his brother acts the way he does and why he doesn’t take his medication so he can “be” normal. The younger brother, angry and upset by his brother’s failure to comprehend, says:

    “Because you don’t know what it’s like. Do you want to know?

“It’s like all the electric wires in the house are plugged into my brain.

    “I want to be like everybody else. I want to be like you, Bobby. I’ve never had a job. Never owned a car. I’ve never lived alone. I’ve never made love to a woman. And I never will.

    “That’s what it’s like. You should know that.

    “That’s why I’m Hindu. Because maybe it’s true; maybe people are born again. And if there’s a God – maybe – he’ll give me another chance. I believe that. Because this can’t be all I’ve got.”

Copyrighted February 2007