The Woes of Treatment Court

I blogged some time ago about the mental health court a judge was intending to start. Well, it has been started, more or less. The basic premise of the thing (contrary to my suggestion) is to make the mental health court a "special condition" of probation, similar to drug court. The participants are required to come to court weekly, attend individual and group counseling sessions throughout the week, show proof of taking medication as prescribed, do community service or keep a job if able to, and take drug tests. Initially, they are required to see a psychiatrist who would (hopefully) prescribe medication and/or adjust it as needed. As we initially had no (read "zero") funding from any source for this program, we began with five participants. Of the five participants, three were "non compliant" with the program. Two went to a 28 day drug treatment facility, and one disappeared before he actually began the program and is pending probation violation procedures.

Now, warning bells should go off. If 60% of the participants cannot "make it" in this program, there is either something wrong with the screening process to admit them into the program, or something wrong with the program itself. There are a couple reasons I see for what is going on. First, the most successful of those in the program (the 2 who both showed up and didn't end up in drug treatment) have traumatic brain injury, as opposed to an illness related to brain chemistry such as schizophrenia or bipolar disorder, which can be treated with medication. The only reason the two of them could not make it in regular probation is that they have memory and cognitive problems and just cannot process how to show up once a month at probation. These people do not need their medications monitored, etc. Further more, we (the committee) had decided at the beginning that a mental health court would not be of assistance to people with such a disability. They probably could make it through the program fine, but the program would not help them.

The people the program is intended to help are those other three people, two of whom are bipolar and one is schizophrenic. They get into trouble because they either self-medicate (usually with meth), or steal (for the thrill when they're manic, because they believe the things to be theirs, or because they can't hold a job due to their disability), or both. So, the program intended to help the mentally ill get back on track with their meds and housing and SSI is turning out to be simply drug court with extra conditions. The irony is that the service provider is the same as for drug court. My question: Why not just put them in drug court, since that's what's happening anyway? The personnel involved are exactly the same, it's just the participants that are different. This way, the federal grant we just got can be used for a diversionary type of program, which is much more acutely needed anyway.

Here's what I think a mental health court should look like: When a criminal defendant is transferred to district court "on competency," they might be referred to mental health court, especially if they are only facing charges for resisting an officer or battery on an officer. (Many of my competency clients have the police called on them because they are acting strange or creeping people out, the cops show up and they freak out.) If it is decided that such a defendant would be fine if properly treated, they would start the program. Their criminal case would be dismissed without prejudice. They would get a caseworker (which we do have available) to help them apply for SSI and set up housing. They would see a doctor to give prescriptions and monitor the meds and check in with someone to be sure they're on their meds. They would only have to give drug tests after they're meds are fully adjusted and have been allowed to take effect (say a couple or 3 months). Only then would they be punished for using meth or other drugs. The program would last 6 months to a year, and if they completed, their criminal case would remain dismissed. If not, it would be refiled, and we would deal with the competency issue at that point. The incentive to the client would be that they wouldn't have to sit in jail for 3 to 9 months waiting for evaluations or risk a 9 month trip to the state hospital to be treated to competence. (i.e. forcefully medicated) (Note: SSI is discontinued if a person is incarcerated for more than 30 days. Thus, if they had SSI before their arrest, they no longer have it when they're finally released.) The incentive for everyone else would be that we would save the county money by not having them in jail, we would save the state money by not sending them to the hospital, and (with any luck) we would help them break the cycle of committing new crimes as soon as they get released from jail on the old ones. If a defendant is found incompetent, the cases are ultimately dismissed anyway, except for the most heinous.

I mean, it makes no sense for my little competency guys to keep getting arrested, their cases (mostly misdemeanors, property crimes, or tangling with police or jail guards) dismissed once they're found incompetent, released from jail, then arrested again for the same or similar charges with no treatment in the interim. The best example I have of this is my guy that steals cars. He's clearly schizophrenic: he has auditory hallucinations (apparently quite a benevolent person, as my guy laughs a lot when listening to the voice). His cases (he stole 2 cars the same day) got dismissed when he was found incompetent and not dangerous (mandated by statute). Six hours after his release from jail, he stole another car, led the cops on a chase, and returned the car to the police parking lot. He also was arrested for the charge of "pedestrians in roadway," because he was apparently caught when whe was walking down the middle of the road, talking to his invisible friend after dumping the car. He has not been on meds since 2004, when he was committed to the state hospital. Now, there are two solutions to this: Either we can get the cops to quit arresting him no matter how many cars he steals, or we can give him an incentive to take his meds, and adjust them if they make him too listless (his problem with taking them is he doesn't like being sleepy all the time.)

Here's my main point (finally). We don't need "drug court plus" (as I've taken to calling it). We need some way to help my guy with the car problem to stay on his meds so he will quit stealing cars!

End of sermon.

A Return to the Normal (more or less)

Betsy got her stitches out today. Woohoo! She has now been released by the vet to "go out and play" in any fashion she sees fit. So, she celebrated our return from the vets by running laps around both my yard and the next-door-neighbor's yard, with Adagio close on her heels. She was ecstatic! No more being locked in the house!

In other news, court has been very strange lately: We have more than one judge who do not care for the Rules of Criminal Procedure and have decided to make up their own, always to the detriment of our clients. One has decided that she may dismiss defense appeals that are trial de novo, due to failure to preserve issues in the lower court. The lower court is not a court of record, and thus you can't preserve issues anyway. Another has decided that she is able to revoke the probation of people who are not actually on probation anymore, but have been discharged. A third has decided that she does not like the various time limits outlined in the Code, and sets her own, frequently without telling anyone until her new time limits have expired. I have also been dealing with ADAs who seem to enjoy lecturing me about how to do my job, and how unethical it is for me to try to get my clients out of jail. I don't think all these people realize that what they are doing is only motivating me to fight harder in court: a motivation that has been ebbing of late.

I also have a whole pack of competency clients. These cases for some reason seem to come in waves. I love my competency clients. They are (mostly) really sweet and lost. And more than one of them seem to have a crush on me. Normally, something I'm not wild about, but in them, it's quite poignant. After all, how many people have they ever had try to help them in their lives? And it just makes me angry that some police officers seem to just follow them around waiting for them to get afraid and violent. I have one poor guy who was charged with filing a false report. Honestly! The guy is so delusional, they had to have been able to figure something was not right when they took the report. He called me all upset and afraid today because the judge made him "stand in the oaths and give up his rights and his lefts!" Even the not so sweet ones I don't mind. I find I have the patience to listen to their convoluted stories and reassure them and call their mamas and girlfriends. A strange thing of late. Even the guy who wants to kill me because I "raised his incompetence" I have patience with. After all, it's not his fault. No one wants to be thought of as either crazy or stupid. (Though I'm careful to not to say the words "incompetent" or "evaluation" in his presence. I was quite angry when the ADA brought it up when there was no need.)

And, I can look forward to six trials set for next week, with no idea at this point which may be going and which not.

So, things seem to be returning to normal. As normal as they ever get around here, anyway.

No, I Haven't Quit My Job

It just seems so much more interesting to talk about fuzzy puppies, than the doings of the criminal justice system in Podunk, NM. But there are things going on. The first is that my second murder case pled out Wednesday. It was a horrible plea offer, and he would not have gotten a worse sentence if it went to trial. But the idea of the State filing for the death penalty scared him, even though there is only the minutest of possibilities that the DP filing would make it past the judge, never mind the jury and the appellate process. But it was what he wanted, so now he's going to die in prison, in all probability. How many people do you know that can make it to 75 years old in prison? But I don't feel nearly so bad for him as I did for my last murder defendant.

More news is that mental health court is underway. It is as I feared. The judge simply wants to create a program so she can say she's created a program, rather than creating a program that can really help the situation. In other words, her belief is that we should go the easiest possible route and have mental health court as part of probation, so we don't have to actually do any planning or come up with new ideas. She just wants it to be exactly like drug court, and have drug court running it, since that program is already in place. She turned a deaf ear to my suggestion about a diversionary program, and pretty much has ignored me since. There's a new ADA participating who can't even tell the difference between the competency docket and mental health court, knows nothing about mental illness, and spends her time screaming at the rest of us about such things as dress codes and whether the participants in the program should be called "clients" or "defendants." And we still have no services here that can actually help the mentally ill. The service provider we are using has only 2 therapists, no psychologists, and a psychiatrist that comes once a month to write scripts.

I had only one trial since I last posted. It was exceedingly strange, as the state "found" the surveillance video of the incident at about 9 the morning of trial, they had to send someone to get it, which took until about 10. Then we both had to watch it and argue about whether to exclude it, declare a mistrial, or what should go on while the jury was sitting there. No one could ID my client other than that he "strongly resembles" the guy on the tape, and my client went crazy in the middle of trial. (Talking to himself, laughing, etc.) He had previously been found competent, but had obviously decompensated while in jail.

And I have a trial Thursday that involves a deaf-mute that cannot read or write English, who was found parked in the Wal-Mart parking lot and got charged with DWI. We've been trying to have the trial since May, but there are recurrent problems getting an interpreter. I really hope to win this one, as he really didn't do it. His wife had driven to the Wal-Mart and was inside when the cops showed up. She comes out and tries to tell the cops that she was driving, but this is difficult, as she's deaf, too!

Anyway, that's the latest with work. I also am continuing to play my violin. We're thinking of getting together a string quartet! But for now, I am going to go to the grocery store, watch the rest of the football game, and work on my tandem-socks.

On Tragedy

One of the problems with blogging about a job like this in a town this small, is that there are some times when you can't write about what you want to. I'm semi-anonymous, meaning select people know who I am, but the general public does not. And I would prefer it to remain that way. For example, I'm not thrilled with the idea of someone at the local newspaper finding my blog, and linking it to me. (They haven't, yet). I figured you all deserve an explanation about why I haven't blogged much in the past few months.

It's mainly because what I really wanted to write about was a certain (quite serious) case that had been ongoing for over a year, and that is now finished. (Caveat: I'm not divulging confidences, this is all public record and most of it was in the paper.) The whole situation is immensely tragic. The original charge was an "open" count of murder, meaning the state could file for the death penalty. My client had stabbed a girl upwards of 30 times with a steak-knife and then shot her with a composite bow and arrow. She had been my client's best friend's girlfriend. They were to be married. She had a 3-month-old baby, who saw the whole thing.

My client had been released less than a week before this from a mental health hospital, in a town far from his home, with no money, no transportation, and his prescriptions. Not the actual meds, just prescriptions on pieces of paper for his anti-psychotic medications. He had begged them not to discharge him, he was afraid he would hurt someone. They discharged him anyway.

His hope for the outcome of all this was to be sent to the State mental health hospital forever, so this would never happen again. He was extremely remorseful, and initially wanted to receive the death penalty. The only way to get him to the mental hospital would have been to have the judge find him incompetent to stand trial and dangerous. However, by the time the competency evaluation took place, he had been stabilized and was competent.

Ultimately, he pled to second degree murder and tampering with evidence, and was sentenced to 26 years in prison. He absolutely did not want to put the victim's family through a trial, even though he had a viable insanity defense.

The sentencing hearing was gut-wrenching. Ten of the victim's family members spoke. I have never sat through a longer, more difficult hearing in my life. The most tragic part of this whole thing is that all of this could have been prevented. One life was extinguished, another destroyed, and innumerable lives were changed forever. All the result of the lack of proper mental health care.

My Trip to Treatment Court

Also called "mental health courts," treatment courts have been popping up throughout the country in an attempt to deal with mentally ill individuals who become involved with the criminal justice system, but really don't belong in it. I've had some experience dealing with mentally ill individuals in the context of my job within the criminal justice system, and I am in complete agreement that the courts, jails, and prisons are unable to either help the mentally ill people that come afoul of the law or protect the community. My personal feeling is that if there were some way to help the mentally ill become stabilized over the long-term and integrated into society, society would then be protected from them, and there would be no need to warehouse these people as is currently being done to a greater or lesser extent.

My view of this seems to be shared by our newest district judge, the chief deputy district attorney and our court administrator. As a result, we have been meeting to discuss creating a treatment court here. As part of our investigation into the viability of this, we took a trip to a treatment court in another jurisdiction yesterday. It was exciting to see the participants complying with their medications, and thereby complying with their probation, stabilized, and happy. The program we observed appears to be helping the people in the community, and I commend them for doing such a good job with it in such a short time. (The program is only about 6 months old.)

However, the more we spoke with the judge in charge of the program, the more frustrated I became with the lack of resources we have here. The program I observed would never have got off the ground if the treatment providers in the community hadn't backed the program immediately and enthusiastically. Virtually all the services in the area were on board and doing what they could to help, and that's great. But here we have almost no services at all. There is one program that provides caseworkers to help the mentally ill find residences, get on disability, etc., but they are so under-funded and overworked that the turnover is astronomical and the staff is poorly trained. I believe we have 2 therapists in the private sector, and it takes months to get an appointment, even if you can pay them or have insurance. I don't even know whether they take medicaid or medicare, but I doubt it.

Another concern I have is that the treatment court I observed is a part of probation. This means that the participant must have (at some point) been competent to stand trial or plead guilty to a crime. That's all fine, and everything. But the clients that I have had that I'm most concerned about aren't competent to stand trial or plead guilty, even when they are taking their medications. When they are taking their medications, they are no longer dangerous, so they don't have to be locked up. But when this occurrs, their criminal cases are dismissed, and there is no one to monitor whether they continue with their medications or not. So, as soon as they're off their medications, they get in trouble with the law again. The clients I have that are competent when they're on their meds are placed on probation (usually) and they're monitored by their probation officer. Some times this works and some times this doesn't, but at least they're not completely on their own, like those whose cases are dismissed.

What would be more helpful, I think, is a program in which someone whose case is pending is monitored by a treatment court, and then their charges are dismissed when they successfully complete it. It would be an alternative to them being found incompetent while sitting in jail for months and then going to the state mental hospital. The mental hospital would appreciate it, since they're always short of beds; and the client would appreciate it, since they wouldn't have to sit in jail waiting for a competency evaluation to be completed. I think there's a treatment court like that in a different town in the state, so I'm going to push to observe that next time our little team meets.

But our trip was a good learning experience!

A Mental Health Update

I'm apparently not the only one concerned with the mental healthcare (or lack thereof) in the criminal justice system.


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I was somewhat encouraged this week with regard to our new judge and competency cases. I had my 3 "dangerousness" hearings on Thursday, to which I referred previously. She actually agreed to dismiss two of the cases, as the State conceded that the clients did not meet the definition of "dangerous" in the statute, and the third she sent to the state mental hospital to treat to competence. I was surprised that she agreed to actually dismiss the cases, rather than wanting the State to dismiss them. I was hoping she would dismiss the third case, since the client had already been to the mental hospital on this case, and upon return to jail refused her meds and became incompetent again. But, at least, she's out of jail for a while. And who knows, maybe this time she will actually stay on her meds.

The really good development occurred after the hearings, when the judge asked the Deputy DA, me, and the court administrator back to her chambers. She wanted to discuss setting up a mental health court, and it seems that she really wants to go through with it. As I said in the post linked above, my only reservation with this is that we don't have a lot of services in this community for the mentally ill, and without adequate services, I don't see how a mental health court would work. But both the court administrator and the Deputy DA agreed with me that services in the community were required for this to work. So, I feel better about this now. The administrator is going to get us some procedures manuals from other mental health courts in the state in the next couple of weeks so that we can see how theirs work. He also wants to schedule a field trip to a mental health court sometime in January to see what it looks like. In the meanwhile, he's going to explore funding sources.

My boss even said I could represent our office in whatever committee gets formed to implement this. It is exciting to be able to help address a problem that the justice system is unable to adequately cope with, but that affects the justice system and those involved in it on a daily basis. I invite anyone to comment with ideas of what works or doesn't work.

On Mental Health

As I have said before, I have a soft spot for my competency clients. Others have also posted recently on this subject, and I feel it is one that must be dealt with if, for no other reason, very few people seem to understand or care about it.

An example:

I had my first competency hearings in front of a brand-new judge yesterday. It was appalling! It was clear within minutes that not only had she not bothered to educate herself about how these types of cases are to proceed through the court system, she would not listen to me as I attempted to explain how they are supposed to work. And I wasn't using my own words, I was reading the statute book! "If a client is determined incompetent, charged with a felony, and not at that time determined dangerous, the case must be dismissed." Misdemeanors are dismissed on a finding of incompetence, period, regardless of supposed dangerousness. Instead, she found all my clients incompetent and set them all (including the misdemeanors) 3 weeks from now for "dangerousness hearings" (no such things exist in New Mexico), keeping the clients in jail in the meantime. This, of course, put them outside the statutory timelimits. I did have one client out of jail, and I was interrogated as to why he was out. He had bonded out on 2 misdemeanors and was released without bail on the felony. The judge was distressed that he was out of jail because, she said, we can't have incompetent people running around, she started to say, "when they are dangerous" and changed it to, "when they might be dangerous."

What are we, back in the 19th century, a time when the mentally ill were greatly feared and locked up for no reason other than a few chemical imbalances in their brains? Hasn't society progressed beyond that point?

I finally figured out what this judge's deal is when, after the hearings, she started talking about setting up a mental health court. I know these exist in other places around the state. And I generally think them to be an excellent idea. However, in order for them to work, there must be services in the community for the mentally ill. For what good is the court checking to ensure that someone is taking their medication when the person is homeless and unemployed and have no means by which to obtain either housing or an income and no one to help them get to a doctor and become stabilized on their meds? Upon voicing my views about this with the judge, she was not swayed, or even interested. So, if she has her way, we will soon have a court program that punishes the mentally ill for not remaining on their meds when they have no means to do so, and she will have set up an ineffectual program that will look good to her political higher-ups and help her climb the political ladder because she will have single-handedly gotten those "crazies" off the streets.

I hate politics. Especially when those sacrificed to it have no choice in the matter.

Well, I did it!

So, at the staff-meeting on Tuesday, I was actually able to explain a little bit on how to do competency cases. I made hand-outs of FAQ's and didn't even get corrected too much. My main concern was that the more experienced attorneys in our office from other jurisdictions would interrupt frequently and correct me with incorrect information. Fortunately, this did not happen as often as I feared it would, and when it did, I was able to cite current law about why I was right and they were not. The best part was that I was able to do this in an appropriately respectful manner, so that they did not think I was just being uppity. All in all, it went much better than I feared.

Another good thing occurred when one of our newbie attorneys got her first competency case and made contact with the client's caseworker. The caseworker, it turns out, is involved with the beginnings of a state-wide coalition of various court, law enforcement, and mental health agencies to try to find a solution to this problem of the mentally ill who are indigent and keep ending up in the court system. The newbie gave my name to the guy and I am hoping to be able to get involved in trying to address some of these issues. You know, I do like helping my clients. But, it is good to sometimes be more involved in the "big picture" when one has the opportunity.

Now, I am going to leave work behind and watch the rest of Game 4 of the World Series! (My word, it looks like the Tigers are ahead 3-1 at the end of the 3rd inning!)

Me, the Teacher?

As a result of my last post, and the various helpful comments on it, I have been thinking more about my competency cases. Our competency section of the criminal code is quite confusing and not well written. None of the DA's seem to have a firm grasp on how it works, and never seem able to prepare the various orders required for different phases in the proceedings correctly. We've had people hanging out in jail for extended periods after the judge decides to send them to the mental hospital waiting for the DAs to write an order that is acceptable to the hospital. These types of cases also seem to confuse the court staff, because it seems they open a new civil case every time competency is raised in a criminal case already in District Court. This means that once the competency issue is decided and the criminal case either continues or is dismissed, the civil case just hangs out on the court docket indefinitely. In addition, when I was going through the cases transferred to me from an attorney who left our office, I ran across evidence that he had only the vaguest idea what competence to stand trial means, never mind the proper procedures he should have followed in the process. After talking to various other attorneys in our office, it became clear to me that I seem to be the only lawyer in our office with a good understanding of both what competence to stand trial is, and how to proceed when this becomes an issue.

I therefore, for better or worse, volunteered to give a sort of mini-tutorial to our office on how to handle competency cases. Perhaps once our attorneys all understand how this works, we can get these cases dealt with in the proper way, rather than this hit-or-miss approach that seems to occurring now. In addition, maybe we can get the new judge to understand how this works also, and in this way avoid these unnecessary status conferences she has been scheduling to find out why these cases seem to take forever. There is even an off chance we could avoid our clients being in limbo indefinitely while waiting for the proper paperwork to be filed, or having their cases take forever due to competence being raised when there was no need for it to have been.

This all seems good on paper (or the computer screen). I guess we'll just have to wait and see what happens. Now all I have to do is try to find a way to explain to 10 lawyers (most of whom think they know more than me) how this all is supposed to work. Wish me luck!

Catch-22

In my line of work, I come into contact with a fair amount of people who are mentally ill. It may surprise some people that this is the case, but in a state like New Mexico, services for the mentally ill are extremely limited, especially if they are indigent. Thus, many people who are bi-polar, schizophrenic, and mentally retarded end up in the court system. They get arrested when, for example, they are asked to leave a restaurant and will not do so because they believe they own the restaurant. Or, they get into a fight with the manager of the restaurant because they believe the manager is trying to poison them. Or, the police try to write them a ticket for pan-handling but they believe the police officer is going to shoot them, so they fight with the police officer. Or they just simply have nowhere to go and no way to get there, so they are arrested for loitering.

Generally speaking, I like my "crazy" clients. They generally aren't what one thinks of as criminals. And, even if they are with it enough to figure out who I am, they like that I am trying to help them, even if they can't figure out what I actually do for them. The idea that someone is on their side is usually fairly foreign to most of my mentally ill clients.

Under the Constitution, and the laws of New Mexico, a person cannot stand trial if they don't have a sufficient concept of what is going on, or if they are not grounded in reality sufficiently to help their attorney. If they think I am a member of an anarchist society the purpose of which is to hurt them in some way, or if they have no idea (and cannot learn) that the reason that man on the tall throne is wearing a dress is that he is the judge, the State is prohibited from proceeding in the criminal matter. When this occurs the judge can either dismiss the criminal case, or send the defendant to the state mental hospital to be "treated to competence." Usually, the "treatment" consists of medicating the person (with or without his consent) until either he is capable of understanding what's going on or 9 months have passed and the person still cannot understand the proceedings or assist his attorney. Either way, the person then is sent back to jail and the judge can do one of four things: He can dismiss the case if the person remains incompetent to proceed. He can proceed with the case if the person is now competent. He can commit him "civilly" to the state mental hospital, i.e. with no disposition of his criminal case, if he remains incompetent but is dangerous. Or, if the client remains incompetent and is charged with one of 8 very serious crimes, the judge can have a mini-trial about whether the person committed the crime he's charged with and sentence him to the "criminal" side of the mental hospital if found guilty.

The problem is this: If the criminal case is ultimately dismissed, the court no longer has authority over the client. The court cannot supervise the person to help him apply for disability, get to a doctor, get his medication, check that he's taking his medication, or find a place to live. The client is back in the same position he was in when he picked up the criminal charges in the first place, whether for things like loitering or vagrancy, self-medicating with illegal drugs, or wandering into other peoples' houses thinking it was their house.

Even if the person becomes competent through this process, either by a trip to the mental hospital or just getting on medications while in jail, there's definitely no guarantee that he will remain on his medications. I had one client that was fine when she got back from the mental hospital, so the judge let her out as soon as she got back and ordered the criminal case to proceed. She immediately quit her meds, and picked up new charges. So, before the case could progress through the system at all, she was incompetent again, and is now set for another trip to the hospital. This could go on indefinitely! And it probably will.

I like my incompetent people. But there has to be some way that we can get services in Podunk, New Mexico so indigent mentally ill people can get medication, stay on medication, and not have to resort to stealing or pan-handling for their livelihoods!

I mean I've had one guy three different times in 4 years. When he's off his meds, he beats up his girlfriend and the cops when they come to arrest him. His girlfriend can keep him on his meds for about nine months at a stretch. After that, he either picks up battery charges against his girlfriend or the cops. Then he goes to jail. Then he goes to the hospital. Then he comes back from the hospital and his case gets dismissed, because if the medicate him to the point he's not talking to invisible people, he's unable to sit through court. Then he stays on his meds for a while. Then he gets off them. Then he picks up new charges. Repeat process ad nauseum.

It's so frustrating that the "system" is unable to cope with this poor guy, and all my other clients like him.