Legal and Systems Issues in Forensic Services: Jackson , Sell , Edwards , and More

1. Legal and Systems Issues in Forensic Services: Jackson, Sell, Edwards, and More W. Lawrence Fitch, J.D. Maryland Mental Hygiene Administration University of Maryland Law School and Medical School Joint Meeting of the NASMHPD and NASDDDS Legal Divisions Alexandria, Virginia November 14, 2012

2. Background: State MH/DD Institutions • 1955: 559,00 MH Patients 1967: 195,00 DD Residents • 2012: 42,640 MH Patients 2005: 42,000 DD Residents (and going down) • 45% of MH Patients “Forensic” (Committed by a Criminal Court) • 30% of Forensic Patients Committed as Incompetent to Stand Trial (IST)

3. Background, Cont. • LOS for Civil Patients (Nationally) • Schizophrenia: 11 Days • Bi-polar Disorder: 7.8 Days • Depressive Disorder: 6.5 days • LOS for Patients Committed as IST: 3-6 Months + • In 1971, LOS for IST Patients Often Life (McGarry)

4. Deinstitutionalization of Competency Restoration Services • Community Based Restoration • Permitted by Law in 37 States • 16 States Have Programs; Mostly New • Small Percentage of Defendants: Often Juveniles Found IST in Juvenile Court or Defendants with Cognitive Disorders or Developmental Disabilities • Most Adult IST Defendants Have Psychotic Disorders • Community Placement Sometimes Follows Inpatient Stay: Restoration or Disposition? • Jail Based Restoration Services: AZ, GA, TX, VA • Frustrates Misuse of CST to Circumvent Commitment

5. Jackson v. Indiana (US SCt, 1972) • Theon Jackson: 27 Yr Old “Mentally Defective Deaf Mute” Charged with 2 Purse Snatchings Totaling $9 • Found IST, Committed to Ind. DMH “Until CST” • Attorney Seeks Reconsideration: No Evidence of MI; No Hope for Restoration– “Life Sentence” • State: Can’t Say He Won’t Become CST • US SCt: Record Clear Jackson Not Restorable

6. Jackson, Cont. • Question:Constitutional to Keep IST Defendants Under Special Restoration CommitmentIndefinitely? • Baxstrom v. Herold (US SCt, 1966): Prisoners Committed at End of Sentence Due Equal Protection • If Differential Treatment Not Justified for Convicted Offenders, Not Justified for Untriable Defendants: Unrestorably IST Defendants Due Same (Equal) Protections as Ordinary Civil Committees • Due Process: Nature and Duration of Confinement Must be Related to Its Purpose– Commitment to Restore the Unrestorable

7. Holding in Jackson • Defendant Committed as IST “Cannot be Held More than the Reasonable Period of Time Necessary to Determine Whether There is a Substantial Likelihood that He Will Attain [CST] in the Foreseeable Future” • Defendant Must be Making Progress Toward Restoration • If Found Unrestorable, Defendant Must be Civilly Committed or Released

8. Implementation of Jackson • Maximum Period of IST Commitment (Bailey-Smith, 2010; 35 States) • No Statutory Limit: 7 States (Though 4 Require Dangerousness for Commitment) • 30- 90 Days: 3 States • 90 Days- 6 Months: 4 States • 9 Months- 1 Year: 7 States • 15 Months- 2 Years: 6 States • 3 Years- 5 Years: 3 States • Two-thirds of Maximum Sentence: 1 State • Maximum Sentence: 2 States • Note: 8 States Specify Lesser of Above or Maximum Sentence • Note: 4 States Allow Less Time for Misdemeanors (NY: No Special Commitment of IST Misdemeanants)

9. Restrictions in Some States on Post-Jackson Civil Commitment (Bailey- Smith, 2010) • GA: Court Must Approve Release • IN: Defendant Remains Hospitalized Until CST or Charges Dismissed • MN: Criminal Court Supervises Commitment for 3 Years • TX: Criminal Court May Deny Release • NM: Commitment for Maximum Sentence

10. Indiana v Davis (Ind S Ct, 2008) • Question: Must charges be dismissed when def found unrestorable and confined for maximum sentence? • Def here IST for criminal recklessness (3 yr max sentence) • 3 months later, hosp opines def unrestorable, initiates civil commitment • Though def civilly committed, charges still active and court maintains oversight • “Statute is silent” on status of IST commitment after finding of unrestorability and civil commitment

11. Davis, con’t • DMH believes because charges pending, court must approve any release; Forensic Director says courts almost never release these def’s • Def requests dismissal of charges after 3 yrs (max sentence)– Trial court grants motion, appeals court reverses; on to the Ind S Ct • S Ct reverses appeals court, orders dismissal of charges: Unless state demonstrates legit interest in prosecution (e.g., to assure sex off registration), due process requires dismissal where def unrestorable and max sentence expired-- State has no legit interest in prosecuting this case

12. Davis, con’t • But what about restrictions on civil commitment (requiring court approval for release)? If charges have not been dismissed, are these restrictions constitutional after def found unrestorable? • Language in the opinion (discussing Jackson) suggests no: Remember, Jackson said differential treatment violated equal protection • But holding stops short– only requires dismissal of the charges after def found unrestorable and confined for as long as max sentence

13. Ohio v. Williams (OH Ct Apps, 2008) • Another Jackson Case: Constitutionality of Law that Permits Special, Court-ordered Commitment of Unrestorably IST Def • Ohio Law: If def unrestorably IST for certain serious felonies and state proves by clear and convincing evid that (i) def committed crime charged (“factual guilt”) and (ii) def meets heightened commitment standard, criminal court may retain jurisdiction up to max sentence and order commitment to state hospital

14. Williams, con’t • Hospital must report periodically re def’s competency and committability • Court must approve release or movement to less restrictive confinement; state forensic center must weigh in if hosp makes proposal • Commitment ends only when (i) court finds def no longer committable, (ii) def restored to CST, or (iii) max sentence expires-- then prosecutor may seek ordinary civil commitment

15. Williams, con’t • Def here unrestorably IST for rape, committed under special statute; def appeals • Ct Appeals Reverses: -- Commitment violates equal protection: No reasonable basis for more onerous release procedures (citing Jackson) -- Commitment violates due process: Impermissible “end run around Jackson” -- Indictment must be dismissed when def found unrestorable -- Also, commitment here criminal, not civil, so if such a proceeding were constitutional, def would be entitled to criminal protections at “factual guilt” determination (right to jury trial, proof beyond reasonable doubt, etc)

16. New Mexico v. Adonis (NM S Ct, 2008) • Another Jackson case re Constitutionality of Law Permitting Special Commitment of Unrestorably IST Def’s … with very different outcome! • NM law: If def unrestorably IST and state proves crime charged (factual guilt) by clear and convincing evid, court may commit def for pd of time “equal to the max sentence” possible • Def here unrestorably IST for murder, committed under special statute for 30 yrs to life (penalty to 1st degree murder)

17. Adonis, con’t • Def challenges commitment: -- Denied right to jury trial and finding beyond a reas doubt, citing Ring v AZ (req’d if proceeding may find facts increasing sentence) -- Evid didn’t support finding of “deliberate intention” to kill, required for 1st degree murder • Court denies Ring claim, finding that commitment is not punishment (is civil), but agrees that evid insufficient to show 1st degree murder-- remands case for re-commitment consistent with finding of 2nd degree murder • But What About Jackson? Def did not argue Jackson violation!!??

18. Ray v Maryland (MD Ct of Apps, 2009) • Question: May court deny dismissal of charges after statutory period has expired? • MD law: Charges must be dismissed if def IST for lesser of the max sentence or 3 yrs (minor crime), 5 yrs (violent crime), or 10 yrs (capital crime) unless prosecution shows “ extraordinary cause” not to dismiss • Def IST for attempted murder • Def moves for dismissal after 5 yrs • State argues def is highly dangerous (sends threatening letters to victim and others) • DMH opines def restorable if took Clozapine

19. Ray, con’t • Trial court finds extraordinary cause (def dangerous and restorable), denies motion to dismiss; def appeals • Ct of Appeals: “Extraordinary cause” means “out of the ordinary • Q: Is it out of the ordinary for an IST def who maxes out to be dangerous and restorable? No-- Def may not be committed unless dangerous and can’t be retained if not restorable; thus, no “extraordinary cause” • NOTE: Dismissal of charges is “without prejudice ,” so state may reinstitute charges….

20. Adams v. State of MD (MD Ct Apps 2012) • MD Law: Charges Agst IST Def Dismissed “Without Prejudice” • Charges against Defendants Ray (from Ray v MD) and Adams Dismissed at 5 Year Limit Without Prejudice • State Promptly Re-indicts both Defendants; Neither Def Leaves Confinement

21. Adams, Cont. • Question: May State Indefinititely Confine IST Defendant by “Simply Re-indicting?” • Court: No-- Re-indictment Requires “Good Faith Belief that Defendant Has Become Competent”

22. Is Strict Implementation of Jackson Realist? • Consider that When Jackson Decided, Civil Commitments Still Pretty Lengthy (250,000 State Hosp Patients in 1972) • Jackson Court May Have Assumed Most Def’s Would Remain Hospitalized • Experience Suggests if Extended Commitment Not Likely Under Ordinary Civil Commitment, Court Will Find a Way • Is There Another Option?

23. Proposed Reform: ABA Criminal Justice/ Mental Health Standard 7- 4.13 (1986, to be re-examined in 2013) • If Def Unrestorably IST for “Felony Causing or Seriously Threatening Serious Bodily Harm,” • Trial of “Factual Guilt:” Defendant Has All Rights Except Right Not to be Tried if IST • If Factual Guilt Proven Beyond a Reasonable Doubt, Def Subject to Commitment Under State’s NGRI Commitment Law • Your Thoughts?

24. Sell v. US (US SCt, 2003) Involuntary Medication to Restore CST Permissible if: • “Important Government Interest” at Stake • Involuntary Medication “Significantly Furthers” That Interest • Involuntary Medication “Necessary” to Further That Interest • The Medication Proposed is “Medically Appropriate”

25. Sell: Important Government Interest • Crime Sufficiently Serious • Some States Consider Likely Sentence (e.g., Sentencing Guidelines) • Other States Consider Maximum Sentence • Case by Case (6 Months Enough, 10 Years Not Enough) • “Special Circumstances” May Diminish Govt’s Interest • How Much Time Def Confined Already • That Medication Refusal Will Likely Result in a Lengthy Hospital Stay, Diminishing Concerns That Def Will be Released Without “Punishment”– Naïve Understanding of Jackson (or Not So Naïve?)

26. Sell: Medication Will Further Gov’t Interest • Medication “Substantially Likely” to Restore Defendant’s CST • Medication “Substantially Unlikely” to Have Side Effects that Will Interefere Significantly with Def’s Ability to Assist • Court May (Must?) Inquire About Types of Medications and Dosages (US v Evans, 4th Cir, 2005)

27. Sell: Medication Necessary to Restore CST • Court Must Find That Any Alternative, Less Intrusive Treatments Unlikely to Achieve Same Result (e.g., Non-drug Therapies) • Court Must Consider Less Intrusive Means for Administering Medications (e.g., Court Order, Backed by Contempt Power)

28. Sell: Medication Must Be Medically Appropriate • Court Must Consider Def’s Best Medical Interests in Light of Medical Condition (Not Just Likelihood of Producing CST) • Again, Court May Inquire About Medication Choices, Dosages, Effects, Side Effects • In High Profile Cases, Expect a Battle of the Experts

29. Sell: Other Grounds for Involuntary Medication • Sell Inquiry Not Necessary if Alternative, “Civil” Grounds Available • To Address “Dangerousness” (Ref. to Washington v Harper, US SCt 1990) • To Protect Def’s “Own Interests” Where Medication Refusal Puts Health Gravely at Risk (Professional Judgment) • Appointment of Guardian to Make Medication Decision for Def Not Competent to Do So on Own • Sell Suggests States Rule Out Alternative Grounds Before Using Sell Approach (Suggests Courts Determine Whether Alternative Grounds Tried First and, If Not, Why Not)

30. Do States Use Sell? • Two Recent NASMHPD Surveys (Logan, Bailey Smith) • 13 Responses • 12 Relied No • 1 Replied Yes (UT) • IN Provides No right of IST Def’s to Refuse (Not Yet Tested) • In RI, if Def Refuses, State Certifies Def for Civil Commitment, Where Involuntary Medication Allowed • Note: The Feds and Some States (e.g., CA) Do Use Sell • Note: In At Least 2 States That Replied No Above, There are State Appellate Opinions Supporting Sell’s Use

31. May States Use Sell Approach in the Absence of a Sell Statute? • Sell: Provides Constitutional Clearance • But States May Provide Def’s with Greater Protection Than Constitution Requires • If State Law Prescribes Circumstances Under Which State May Medicate Over Objection, May Courts Go Further Simply Because Sell Says It Would Not Be Unconstitutional to Do So? • Some Appellate Courts Have Affirmed Sell’s Use in Absence of Statute ( e.g., State ex rel. D.B., Tex App-Tyler, 2007)

32. Final Thoughts on Sell • Slobogin (Wash U L Rev, 2012): Sell Not Necessary Because “Exceptions Swallow the Right” • IST Overlaps Substantially with Incompetency to Make Treatment Decisions • Def’s Charged with Crimes Likely to be Seen as Dangerous • Suppose Defendant Likely Restorable with Medications but Successfully Refuses? • Court Should Find Def Unrestorable (Fitch) • Def Cannot be Required to Waive One Right in Order to Exercise Another

33. Competency to Represent Oneself Background • Sixth Amendment (1791): Right to counsel • Powell (1932), Zerbst(1938), Gideon(1963): At state expense if indigent • Faretta v California (1975): Right to represent self if competent to waive right to counsel (“intelligent and voluntary” waiver)

34. Question: If Defendant is CST with Counsel, is Defendant Competent to Waive the Right to Counsel and Proceed Pro Se?

35. Godinez v Moran (1993) • Def charged with 3 counts 1st - degree murder, is assigned counsel, pleads not guilty • Def evaluated, found CST (but “very depressed”— “may be inclined to exert less effort towards his own defense”) • Prosecution decides to seek death penalty

36. Godinez v Moran, Cont’ • Def asks to discharge counsel and change plea to guilty– reason for waiver: to prevent presentation of mitigating evid at sentencing • Judges asks routine waiver questions, def gives “largely monosyllabic answers” • Judge accepts waiver (“knowing and intelligent”), accepts guilty plea (given “freely and voluntarily”) • Def presents no mitigating evid, is sentenced to death

37. Godinez v Moran, Cont’ • Post-conviction claim that def was incompetent to represent self, denied due process • 9th Circuit grants relief: competency to waive counsel and plead guilty requires a higher level of competency than CST: “capacity for reasoned choice among the alternatives” • Prosecution appeals to US Supreme Court

38. Godinez v Moran, Cont’ • S Ct reverses, reinstates conviction and sentence: decision how to plead and whether to waive counsel “no more complicated than the sum total of decisions a def may be called upon to make during course of trial [as required for CST]” • Competency to waive counsel does not require consideration of competency to represent self

39. Godinez v Moran, Cont’ • Dissent: Competency with counsel different from competency without: --“Person who is competent to play basketball not thereby competent to play violin” --“Def who is utterly incapable of conducting own defense cannot be considered ‘competent’ to make such a decision, any more than a person who chooses to leap out of a window in the belief he can fly can be considered ‘competent’ to make such a choice”

40. Moran executed March 30, 1996

41. --Godinez v Moran decided 1993--Colin Ferguson granted waiver of counsel 1994: Moran in action (Faretta or worse)

42. So, is Def Who is Competent to Stand Trial with Counsel (and therefore competent to waive counsel) Competent to Stand Trial without?

43. Indiana v Edwards (2008) • Shoplifting gone awry: attempted murder, theft, etc. • IST restored to CST (though “still suffering from MI”) • Request to represent self denied: Though CST, not “competent to defend himself”

44. Indiana v Edwards, Cont’ • Trial with counsel results in conviction; Edwards appeals • State appeals court reverses: Violation of right to self representation • Indiana Supreme Court finds “substantial basis to agree with the trial court’s decision to require counsel” but affirms Appeals Court, citing Faretta and Godinez

45. Indiana v Edwards, Cont’ The Supremes Weigh In • Trial court got it right • Godinez distinguished: only dealt with competency to waive-- no need to consider competency to “conduct trial proceedings” b/c defendant intended to plead guilty (But note that Moran had responsibility for sentencing hearing)

46. Indiana v Edwards, Cont’ • So, may be defendant be CST with counsel but incompetent to present case at trial? Supremes say “Yes,” siding with trial judge • CST standard refers to defendant’s capacity to “consult with counsel” and “assist counsel in preparing the defense”-- standard assumes representation, thus inadequate to resolve question of competency to represent self

47. Indiana v Edwards, Cont’ • Court cites MacArthur Adjudicative Competence studies and APA brief: MI can impair ability to “play significantly expanded role required for self representation even if he can play the lesser role of represented defendant “

48. Indiana v Edwards, Cont’ • Question about dignity of the defendant: Right to self representation “will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel”– Was Colin Ferguson dignified by his presentation? • Proceedings must not only be fair, “must appear to be fair to all who observe them”

49. Indiana v Edwards, Cont’ • IMPORTANT NOTE: Court does not say judges must require counsel for CST defendants who are incompetent to represent self, only that they may without violating defendant’s pro se rights-- though dicta suggests trial of such a defendant without representation may be suspect; another remedy, one which affirms the defendant’s pro se rights: find the defendant IST

50. Standard for Comptency to Represent Self (or to Stand Trial without Counsel) • Edwards Court declines to establish standard, though indicates incompetency must be due to “severe mental illness”– generalized difficulties as might make self representation difficult for ordinary defendants not enough • Court rejects Indiana’s suggestion: “cannot communicate coherently with the judge or jury” • Trial judge’s call, considering the circumstances and of the case and exercising sound discretion