The Truth about “Not Guilty By Reason of Insanity.”
People have always been fascinated by individuals with mental illness. Legal movies have especially glamorized mentally ill criminals who plead not guilty by reason of insanity. They are portrayed to do the crime and not do the time. But in real life, it appears that NGI clients are doing anything but “getting away with it.”
The truth is, NGI clients have it bad. But before I get into the details, here’s a brief summary of how it works. When someone is brought to criminal court, they have the option to plead not guilty by reason of insanity. This means that if the court finds them not guilty by reason of insanity (NGI), it opens a mental health case. Subsequently, NGI clients are committed to a hospital for psychiatric treatment. This commitment is indefinite.
Let me clarify what “indefinite” means; the patient stays in the hospital for an undefined amount of time, meaning that for the foreseeable future they are given a sentence without an expiration date. The point of this type of commitment is the treatment for the defendant’s illness, as opposed to punishment for a crime.
The minute this happens, the legal rights of the mentally ill shrink to a mere opportunity to petition the court for release every 6 months. In reality, this petition rarely works for the advantage of the NGI patient. One of my mentors informed me that in the Public Defender Service for the past 30 years there have been 2-3 NGI patients that won through petitioning. So the chances of an NGI patient being released because of one of these hearings are minute.
The “Other” Death Row
Committing people who are not dangerous for a week or a month seems unjust. So then what do you call it when people are committed for what is practically a life sentence without even knowing it? During my training at the Public Defender Service , my supervisor Carolyn Slenska, Investigations coordinator at the Mental Health Division, informed me that the average stay for an NGI client is 30 years. Throughout my internship, I have read about and even met NGI clients who have been committed for 30 years and counting.
Last week, there was a film showing on NGI patients in the D.C. Superior Court. In the documentary, “Voices from Within,” Joy Haynes follows the commitments of four NGI patients at St. Elizabeth’s Hospital. She and her crew gave cameras to patients at St. E’s who volunteered to participate in a video diary project. They trained them and asked them to record their stories. The documentary presented the real lives of 4 mental health patients who collectively spent 160 years in commitment after being found NGI.
When you sit down and watch the documentary, you forget that you’re following the lives of patients who are supposed to be dangers to themselves or others. You see four high functioning, coherent, cooperative, funny, and relatable human beings. You see men that don’t belong in the hospital. So why are they there? And until when do they have to stay?
Lew, one of the NGI patients, said, “I’m sitting on death row, I just don’t know it.” Tragically, after 47 years of commitment, Lew passed away at 71 years of age. In fact, three of the four men featured in the 2010 documentary have since passed while still in commitment.
Lew also shared a disturbing conversation he had with one of the staff members at the hospital. He states that a staff member told him, “You just stay crazy, you’re putting my kid through school.” All four men featured in the film wanted their freedom. The commitment in the psychiatric hospital is supposed to be about treatment. But after these men get better, after they no longer pose a danger to themselves or other, why are they still there?
Which Side Are You On?
The other day I noticed there is a quotation framed on the walls of the Psychiatric Institute of Washington (PIW). It reads: “Take my will and my life. Guide me in my recovery. Show me how to live.” (Note: Coincidentally, I recently visited PIW and after certain renovations, the plaque is off their walls!)
Then I read the quotation in the back of our business cards: “The mission of the Public Defender Service for the District of Columbia is to provide and promote quality legal representation to indigent adults and children facing a loss of liberty…and thereby protect society’s interest in the fair administration of justice.”
It then became so clear that the mental health system has not escaped the grasp of the adversarial system. There is a clear application of the adversarial process in mental health cases – as in any type of case. On one side, we have the Public Defender Service who tries to get its clients out of the hospital, and on the other side, we have the hospitals that detain and commit people as psychiatric patients. One fights against the loss of individuals’ liberties and the other fights because they know what’s good for the patient. It’s the ultimate battle of lawyers vs. doctors.
An Impossible Burden — Michael Jones v. United States (1983)
Attorneys around the office often bring up this monumental court case, Michael Jones v. US According to this Jones v. US, a patient “has the burden of proving by a preponderance of the evidence that he is no longer mentally ill or dangerous.” (Source: http://www.law.cornell.edu/supremecourt/text/463/354). The significance of this case, however, lies in the decision that the length of the commitment to a psychiatric hospital is not related to the length of time that the defendant would have spent if he were convicted.
Here’s an example: John Doe steals bubblegum from a candy store and the court finds him not guilty be reason of insanity. He gets an indefinite sentence at a psychiatric ward. In an alternate reality, Mr. Doe would have been found guilty for the misdemeanor. Let’s say Mr. Doe is a repeat offender and gets jail time for 2 years. Regardless of the fact that his criminal conviction would have yielded a 2 year sentence, the psychiatric commitment can “until such time as he has regained his sanity or is no longer a danger to himself or society.” (Jones v. US, 1983). This decision makes sense — the whole process sounds fair enough on paper. Well, in reality the burden that is placed on the patients is immense and nearly impossible to meet.
I see the process as having 3 stages. First, an NGI patient has to be examined by his or her treatment team. If the treatment team recommends the patient’s release, we move onto the second stage. On the second stage, the clinical board reviews the patient’s case and makes a determination. If the clinical review is for the release, we move to the last stage. On the third stage, the clinical review board submits the petition to the court asking for the patient’s release.
Here’s where things get complicated: NGI patients have committed crimes. This means that the government is involved in their case. On the third stage, the government can agree or disagree with the hospital’s recommendation to release the NGI patient. If they agree, then it’s up to the court to decide whether the patient can be released or not. If they disagree, it’s still up to the court, but it’s practically impossible to win release. In other words, the government’s agreement is integral for a real chance at NGI patients’ release.
A Necessary Battle
It would be easy to see the situation as a black and white, good vs. bad, where what we do at PDS is good and what the doctors do is bad. But that’s simply not the case. In the real life of mental health cases, lawyers vs. doctors is a necessary “battle.” PDS has developed strong relationships with the majority of psychiatric and medical doctors in D.C. mental health hospitals and psychiatric wards. The adversarial process is set so that each side fights for the client’s best interest. The attorneys at PDS are assigned to represent the clients. Many patients want to be free, many of them want to get out no matter what. So the attorneys do the best they can to advocate for the clients’ decisions. On the other side of the system, if the patients are in risk or hurting themselves or others, someone has to fight to keep them in the hospital until they get better. So medical staff members do the best they can for the clients’ well being.
In conclusion, when an individual with a mental illness is in court, the judge or jury should be deciding between the two best alternatives for the client – that’s what the adversarial system is supposed to accomplish anyway. Sometimes the court deems it necessary to detain a patient until their mental illness is not a danger. Other times, there is no danger and the court honors the patients’ choices and freedom.
Even so, it seems that NGI patients are giving up their entire lives just waiting to “get better.” There also seems to be no standard for what “better” looks like — it’s a very subjective evaluation with very little accountability attached to the evaluators. In NGI cases, the necessity of a vigorous advocate is evident. After a month at the Mental Health Division of PDS, I have come to appreciate the attorneys’ ability to advocate for exactly what a client asks for, without the insertion of their personal beliefs, the doctors’ recommendations, or a subjective bias. In order for the system to work, I guess each player must do what he or she does best – lawyers fight to get clients out, and doctors fight to keep them in – in the hope that the adversarial process is saving more lives than it condemns.
-Gina Gkoulgkountina, ‘15