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Forensic mental health: criminal justice's second revolving door.

In a small Appalachian state, a disheveled man named Joe walks up to a woman and robs her because he is hearing voices telling him that the money she has is his. Police officers quickly catch up with Joe, who, believing the officers are there to kill him, attacks one of the officers. Joe is subdued, arrested and taken to jail, a place Joe has been many times for a variety of offenses. Unfortunately for Joe, he is facing aggravated robbery and multiple felonious assault charges, and this time he is in real trouble. Joe has family, but they will not have anything to do with him. He has been diagnosed with schizophrenia, refuses to take his medications and often behaves erratically because of his condition. After multiple failed attempts to get Joe committed to various psychiatric hospitals, they gave up. Joe's family is unaware of the fact that there has been a 90 percent reduction in available psychiatric beds in the United States since the 1970s and that a person with mental illness is up to 10 times more likely to be in the criminal justice system than in a hospital.1

On the other side of the state, Gary is homeless, having been recently kicked out of a group home for refusing to take his psychiatric medication. He too is schizophrenic and was hearing voices when he robbed a woman. Like Joe, he fights with a police officer and ends up in jail facing charges of aggregated robbery and multiple felonious assault charges. Gary has been in and out of psychiatric hospitals for many years. He has a long criminal history, has been in jail numerous times and served time in prison twice. Gary has frequently been among the more than 22 to 24 percent of offenders with severe mental illness in jails and 16 percent in prisons throughout the U.S. (2)

Six months later, Gary is sitting in prison, having been sentenced to not less than 10 years for first-degree robbery and an additional three to 15 years for assault. Joe is in the state psychiatric hospital, having been found not guilty by reason of insanity (NGRI) for both assault and first-degree robbery, and he will be under the jurisdiction of the court for 35 years. What is the difference--why is one in a psychiatric hospital and the other in prison? They are both mentally ill and both have a long history of incarceration due to criminal behavior. The answers are two legal concepts: competency and NGRI.

Neither Joe nor Gary could afford an attorney, so they are represented by public defenders. Gary's attorney recommended that he plead guilty because of the amount of evidence against him. He enters a plea and is sentenced to prison. Joe's attorney had just been to a training course on mental illness and the criminal justice system. He is concerned about Joe's mental illness and wants to ensure Joe understands his legal charges and the court system, so he recommends a defense strategy of NGRI.

Competence to Stand Trial

In the U.S., the due process clause of the Constitution requires that defendants be competent to stand trial. A defendant is assumed to be competent unless a reason to question it is raised. The issue may be raised by anyone involved in the legal proceedings. The standard for competency to stand trial is based on the Supreme Court decision Dusky v. United States (1960). The court ruled that to be competent, a defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational and factual understanding of the proceedings against him."

In our theoretical example, if Joe's attorney had raised the question of competency to stand trial, the court would have ordered an evaluation to be conducted by a psychologist or psychiatrist. This assessment would help the court determine if Joe was competent. If the court deems a defendant incompetent, in accordance with the state's legislative code, a period of time is set in which an attempt is made to restore the defendant to competency. In 38 states, the maximum time for restoration is one year.' Primarily, competency restoration includes commitment to a state psychiatric hospital, stabilization of symptoms of mental illness, and education about the legal system and criminal proceedings. Those defendants who are restored to competency then proceed to trial. The greatest predictors of being found incompetent are psychosis, unemployment and previous psychiatric hospitalization. (4)

Defendants who are deemed unrestorable by the court, meaning no matter how long they are hospitalized in all likelihood they will never meet the Dusky standard of competency, are usually recommitted to a psychiatric facility. Up until the 1970s, this could have meant a life sentence even for a minor crime. In Jackson v. Indiana (1972), the U.S. Supreme Court addressed this issue and held that "A defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future. If it is determined that he will not, the State must either institute civil proceedings applicable to the commitment of those not charged with a crime, or release the defendant."

Most state legislators have set standards for oversight of the unrestorable defendant. For example, in West Virginia the statute requires that an unrestorable defendant shall "... remain under the court's jurisdiction until the expiration of the maximum sentence unless the defendant attains competency to stand trial and the criminal charges reach resolution or the court dismisses the indictment or charge."5 In the case of Joe, if he were found to be incompetent and unrestorable, he might be facing the possibility of 35 years in a psychiatric hospital.

Not Guilty by Reason of Insanity

NGRI is an affirmative criminal defense in which the defense argues that the defendant should not be held accountable for a criminal act committed while he or she was insane. The legal definition of insanity differs from a psychiatric diagnosis of mental illness. Courts have wrestled with this definition, which has changed over time and has been substantially influenced by public opinion. Many of the legal standards have their basis in English common law.

The pivotal case in defining legal insanity was the M'Naghten case of 1843. Daniel M'Naghten was mentally ill (most likely paranoid schizophrenic) and believed that he was being persecuted by the British government. He planned to assassinate the British prime minister, Robert Peel, but mistakenly shot and killed his secretary, Edward Drummond. M'Naghten was found NGRI. The public disapproved of this verdict, and Queen Victoria was incensed. She ordered the House of Lords to look into this case and they ultimately came up with the M'Naghten rules, which are now a formal definition of NGRI. The M'Naghten rules state that a defendant should not be held responsible for his actions only if, due to his mental disease or defect, he did not know that his act would be wrong or did not understand the nature and quality of his actions. (6)

The M'Naghten rules has been criticized because it is only a cognitive standard and does not have a volitional arm. In other words, it does not take into consideration a mentally ill defendant who knew his actions were wrong, but because of his mental illness was unable to control his behavior and committed the crime anyway. This led to the concept of the "irresistible impulse," which absolves a defendant who can distinguish right and wrong, but is nonetheless unable to stop himself from committing an act he knows to be wrong.

In 1962, the American Law Institute published the Model Penal Code, which combined the strictly cognitive M'Naghten rules and the irresistible impulse test. The Model Penal Code states that the defendant is not responsible for criminal conduct if at the time of the offense his actions are the result of mental disease or defect, and the perpetrator lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (7)

In the U.S., the NGRI or insanity defense came into question after an assassination attempt by John Hinckley on President Ronald Reagan on March 30, 1981. Hinckley was obsessed with actress Jodie Foster, believing if he became famous he would be her equal. In 1982, he was found NGRI, a verdict that outraged the American public. This surge of public opinion about the insanity defense led to several changes, including the U.S. Insanity Defense Reform Act of 1984. Montana, Utah and Idaho abolished the insanity defense altogether; other states adopted the more stringent M'Naghten rules over the Model Penal Code definition of insanity; several states shifted the burden of proof from the prosecution to the defense; and 14 states offered an alternative to NGRI, which is the guilty but mentally ill verdict. (8)

Once again, the insanity defense came under scrutiny as a result of the Andrea Yates verdict. Yates was found to be NGRI for the drowning deaths of her five children in 2001. Public opinion is influenced by several myths or misconceptions about this defense. These myths include that the defense is used frequently, mostly for heinous crimes; that those found NGRI "get off easy;" and further, that the acquitted are released from custody even though they are dangerous.

The reality is that the insanity defense is only raised in about one percent of all felonies and it is successful in only one out of every four cases. (9) While 35 percent of the cases are murder cases, the success rate is the same for all other felonies. (10) Most NGRI acquittees are not released from custody, but are committed to a psychiatric facility until such time as they are no longer a danger and/or no longer mentally ill. (11)

Data comparing the length of confinement between NGRI acquittees and defendants convicted of similar crimes is variable. In Georgia and Ohio, NGRI acquittees spend less time confined than convicted defendants; in New Jersey, Washington and Wisconsin, they spend about the same time; and in California, Connecticut, Colorado and the District of Columbia, they spend more time. (12) If released, similar to convicted offenders, most NGRI acquittees are released on conditional release and remain under the court's jurisdiction for a period of time equal to the maximum amount of time they would have served if found to be guilty. Finally, the recidivism rate of NGRI acquittees is similar to that of convicted defendants. (13)

In fiscal year 2010-2011, West Virginia had 538 court ordered forensic evaluations conducted, in which either competency or NGRI were assessed. Only 15 percent of the defendants were found to be incompetent, and 93 percent of those were successfully restored and returned to stand trial. Additionally, only five percent of the assessed defendants were deemed to be NGRI. In the case of defendants charged with murder, competency and/or NGRI were assessed in 35 cases and none of the defendants were found to be either incompetent and/or criminally responsible.14

Disposition of Mentally III Defendants

In the theoretical examples of Joe and Gary, both have a mental illness and both committed a similar violent crime, but they have very different dispositions, Gary is in prison--a system focused on incarceration and security and not well-equipped to treat mental illness. Joe is in a psychiatric hospital--a system focused on relatively short-term treatment of mental illness and not well-equipped to deal with long-term incarceration. Both systems are overburdened.

It is time for society to consider alternatives to the revolving door. Some states have created forensic assertive community treatment for offenders with severe and chronic mental illness released on parole. These programs focus on working with people in their homes and community with the goals of improving compliance with psychiatric treatment, decreasing inpatient psychiatric hospitalizations and decreasing the likelihood of criminal behavior. There is a great deal of similarity between the mentally ill offender in prison and forensic patient in a state psychiatric hospital, and both tend to cross back and forth between the systems. Perhaps there may be a future when the conditionally released forensic patient and the mentally ill parolee may be treated and monitored by one group consisting of staff from both systems. After all, Gary and Joe have more in common than not.


(1) Torrey, E.F. 2008. The insanity offense: How america's failure to treat the seriously mentally ill endangers its citizens. New York: Norton.

Steadman, H., F. Osher, P. Rohbins, B. Case and S. Samual. 2009. Prevalence of serious mental illness among jail inmates. Psychiatric Services, 60(6):761-765.

(2) Bureau of Justice Statistics. 2006. Mental health problems of prison and jail inmates. Washington, D.C.: U.S. Government Printing Office.

(3) Wolber, G. 2008. The unrestorable incompetent defendant: Length of attempted restoration and factors contributing to decision of unrestorable. American Journal of Forensic Psychology, 26(3):63-77.

(4) Preli, G., W. Gottdiener and P, Zapf. 2011. A meta-analysis review of competency to stand trial research. Public Policy and Law, 17:1-53.

(5) West Virginia Legislative Code, Chapter 27-6A-3(h).

(6) M'Naghten Case, 8 End. Rep. 718. 1843.

(7) American Law Institutes. 1985. Model Penal Code and Commentaries. Philadelphia, Pa.: The Institute.

(8) Melville, J. and D. Nairnark. 2002. Punishing the insane: The ver dict of guilty but mentally ill. American Academy of Psychiatry and Law, 30(4):553-555.

(9) Perlin, M., P. Champine, H. Dlugacz and M. Connell. 2008. Competence and the law: From legal theory to clinical application. Hoboken, N.J.: Wiley.

(10) Melton, G., J. Petrila, J. N. Polythress and C. Slobogin. 2007. Psychological evaluations for the courts: A handbook for mental health professionals and lawyers, 3rd Ed. New York: Guilford.

(11) Thomas, J. and P. Herbert. 2005. Commitment pursuant to insanity acquittal: Clear and convincing burden of proof on an insanity acquittal hearing. Journal for the American Academy of Psychiatry and Law, 33(4):558-561.

(12) Miller, R. 2003. Forensic evaluations and treatment in the criminal justice system. In Principles and Practices in Forensic Psychiatry 2nd Ed, ed. Richard Rosner, 181-246. London, U.K.: Hodder Arnold; distributed in the USA by Oxford University Press Inc.

(13) Silver, E. 1995. Punishment or Treatment: Comparing the length of confinement of successful and unsuccessful insanity defendants. Law and Human Behavior, 19(4): 375-389.

(14) West Virginia Department of Health and Human Resources. 2011. A review of forensic evaluations: study in process.

Georgette A. Bradstreet, MA, is the statewide forensic coordinator at West Virginia University. Cheryl A. Hill, M.D., Ph.D., is the director of forensic psychiatry at West Virginia University.
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Title Annotation:CT FEATURE
Author:Bradstreet, Georgette A.; Hill, Cheryl A.
Publication:Corrections Today
Geographic Code:1USA
Date:Dec 1, 2011
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