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September 28, 2017

"When ‘Not Guilty’ Is a Life Sentence"

The title of this post is the headline of this extended New York Times Magazine article with this summary subheadline: "What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight." Here is an excerpt:

James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention.  According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals.  Even a contributor to the study concedes that no one knows the exact number.  While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”...

[D]espite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist.  A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial.  At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals.  If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury....

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal.  N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.  (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.)  In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility.  In most states, like New York, there is no limit to the duration of that commitment.  In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment.  As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement.  And so, she says, “it can be extended in perpetuity.”

September 28, 2017 at 08:34 AM | Permalink


Lengths of stay in menatal hospitals always average far longer than the sentence in prison with a guilty plea. Most prisons and jails in this country are providing decent psychiatric care. Prison care has a lot of problems, yes, but it is better than being on the street for the mental patient. About 30% of jail beds are filled by straight out chronic mentally ill committing nuisance crimes, and not making bail. Their families could get them out, but choose the greater safety and care of the jail. These patients are often homeless, and have been refusing treatment for decades, sometimes. That poor judgement is part of the illness, and not a choice. So pygmies live in huts in the jungle. Their schizophrenics live in trees outside the villages. The pattern is the same around the world.

Here is the big problem missed in this post. For every NGRI defendant, there are 100 not competent to stand trial defendants incarcerated for years without even getting a plea offer.

Posted by: David Behar | Sep 28, 2017 9:11:28 AM

D. Berman, C&C, 18 Sep 17: "I have not studied every federal capital case, but if the majority of folks on federal death row are like Roof, it is a travesty that it is taking decades to carry out their sentences."

Adamakis ...

I would appreciate an accounting of how many of the roughly 60 folks on federal death row fit this description ...

Posted by: Doug B | Sep 22, 2017 11:42:31 AM


I haven't looked for cases meet with your version of airtight certainty, but what about your own Buckeye state? How about Joseph Murphy off the top of my head?

Posted by: James Randall Adamakis | Sep 28, 2017 10:25:49 AM

I don't think that States have ignored Foucha. Instead, the key is the post-Reagan assassination revisions to the NGRI law.

As a result of changes in the 1980s, in the majority of states, the law now creates a presumption that a defendant found NGRI is both mentally ill and dangerous (as shown by the underlying criminal conduct with the NGRI verdict effectively functioning as collateral estoppel on that issue as of the time of the crime). The states then put the burden on the NGRI committee to show that their mental condition has improved so that they are no longer dangerous. So the test nominally complies with Foucha -- the court keeping the committees confined does make the dangerousness and mentally ill finding. While, in my state, a significant number of committees do get conditional release back to the community (i.e. release subject to compliance with treatment programs), it is very rare for committees to get unconditional release because they are unable to show that they are permanently cured and thus no risk of relapsing into a dangerous condition.

I am less sure about how every state deals with competence. My state requires updates every six months on competence, and one option is a finding that the defendant is permanently incompetent. At that point, in most cases, the case goes to probate court to appoint a legal guardian who determines -- under court supervision -- the appropriate treatment program (outpatient, inpatient) for the ward.

Posted by: tmm | Sep 29, 2017 5:35:13 PM

TMM. Smooth talking, mannerly, intelligent sounding, charged individuals will be deemed incompetent by government psychiatrists. Many have been charged by family members with whom they had conflicts. Some of these victims have moved, forgiven and forgotten the charges against these former mental patients. A history of mental treatment is the distinguishing characteristic, and, of course, lackluster representation.

Posted by: David Behar | Oct 2, 2017 10:38:42 AM

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