Dual commitments to forensic hospitals and prisons: Rational disposition or political compromise?

Journal of Psychiatry and Law

Volumn 27, Issue 1, 1999, Pages 157-185

  Miller, Robert D ^a   Olin, Jonathan ^a   Ball, Elissa M ^a   Johnson, David S ^a   Reynolds, James B ^a   Covey, Jonathan ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

AMNESIA; CRIME; CRIMINAL JUSTICE; HOSPITAL; HUMAN; LAW; MENTAL DISEASE; PRISON; REVIEW;

EID: 0032791554     PISSN: 00931853     EISSN: None     Source Type: Journal    
DOI: 10.1177/009318539902700103     Document Type: Review

References (52)

1. See Abraham S. Goldstein, THE INSANITY DEFENSE (1967);
2. Herbert Fingarette and Ann F. Hasse, MENTAL DISABILITY AND CRIMINAL RESPONSIBILITY (1979);
3. and Norval Morris, MADNESS AND THE CRIMINAL LAW (1982).
4. See Robert A. Pasewark, Insanity Plea: A Review of the Research Literature. 9 J. PSYCHIATRY LAW 357-401 (1981).
5. See Pasewark, supra note 2; see also E.J. Bronson, On the Conviction-proneness and Representativeness of the Death-qualified Jury: An Empirical Study of Colorado Veniremen. 42 U. Co. L. REV. 1-32 (1970);
6. L. Harris, Study No. 2016 (unpublished). New York: NAACP Legal Defense Fund, 1971;
7. Henry J. Steadman and Joseph J. Cocozza, Public Perceptions of the Criminally Insane. 29 HOSP. COMM. PSYCHIATRY 457-459 (1978);
8. Nancy M. Burton and Henry J. Steadman, Legal Professionals' Perceptions of the Insanity Defense. 6 J. PSYCHIATRY LAW 173-187 (1978);
9. Robert A. Pasewark and Deborah Seidenzahl, Opinions Concerning the Insanity Plea and Criminality Among Mental Patients. 7 BULL. AM. ACAD. PSYCHIATRY LAW 199-202 (1979);
10. Dan Slater and Valerie P. Hans, Public Opinions of Forensic Psychiatry Following the Hinckley Verdict. 141 AM. J. PSYCHIATRY 675-679 (1984);
11. Valerie P. Hans, An Analysis of Public Attitudes Toward the Insanity Defense. 24 CRIMINOL. 393-405 (1986);
12. Eric Silver, Carmen Cirincione and Henry J. Steadman, Demythologizing Inaccurate Perceptions of the Insanity Defense. 18 L. HUMAN BEHAV. 63-70 (1994).
13. Robert D. Miller, U.S. Supreme Court Allows Abolition of the Insanity Defense to Stand. 19(2) NEWSL. AM. ACAD. PSYCHIATRY LAW 35-36 (1994), discussing Montana, Utah and South Dakota. Since then Nevada has also abolished the affirmative defense.
14. Normal J. Finkel, The Insanity Defense Reform Act of 1984: Much Ado About Nothing. 7 BEHAV. Sci. LAW 403-419 (1989).
15. E.g., Colorado Revised Statutes Sec. 16-8-101, West Publishing, 1992.
16. Insanity Defense Work Group, American Psychiatric Association Statement on the Insanity Defense. 140 AM. J. PSYCHIATRY 681-688 (1983).
17. Richard Rogers, APA's Position on the Insanity Defense. Empiricism Versus Emotionalism, 42 AM. PSYCHOLOGIST 840-848 (1987).
18. Robert D. Miller, Section on Criminal Forensic Psychiatry, in Richard Rosner (ed.), PRINCIPLES AND PRACTICES OF FORENSIC PSYCHIATRY (1994).
19. Colorado Senate Bill 62, 1995 Session; the bill passed in a subsequent legislative session, when the Scientologists failed to lobby against it.
20. Christopher Slobogin, The Guilty But Mentally Ill Verdict: An Idea Whose Time Should Not Have Come. 53 G. WASH. L. REV. 494-527 (1985).
21. In State v. Szulczewski, No. 96-1323-CR (Wise. Sup. Ct., filed March 13, 1998), Szulczewski was found not guilty by reason of insanity of murder and was committed to a mental hospital. While under that commitment he was convicted of assaulting another patient after having withdrawn his insanity plea. The circuit court sentenced him to five years' imprisonment and ordered him immediately transferred to prison. The court of appeals affirmed, holding that Wisconsin statutes required immediate execution of the prison sentence. The applicable statutes provide that a criminal sentence may be stayed in three circumstances, including "for legal cause." No explicit exception is made for persons serving insanity commitments. The court held that serving out an insanity commitment is a legal cause for staying a prison sentence. Since the court of appeals held that it was not a legal cause, the case was remanded to the trial court to determine whether the criminal sentence should be stayed. On remand, the court sent him back to prison. He was subsequently placed on parole from that sentence and was transferred back to the hospital, still under probation from the criminal sentence. Several courts have dealt with the issue of criminal sentences consecutive to, rather than concurrent with, insanity commitments. In Copeland v. Warden, 621 A.2d 1311 (Conn. 1993), Copeland was found not guilty by reason of insanity and was committed to a state hospital for 20 years. While in the hospital he sexually assaulted a female worker, was found guilty, and was sentenced to a prison term of 15-30 years, to be served consecutive to his insanity commitment. Copeland challenged the consecutive sentence; the Connecticut Supreme Court affirmed the consecutive sentence, noting that the case dealt with a court's power to stay a criminal sentence until an insanity commitment has concluded. In State v. Flemming, 409 A.2d 220 (Me. 1979), Flemming was found not guilty by reason of insanity and was committed to a psychiatric hospital. He subsequently escaped and, upon apprehension, was convicted of escape. He was sentenced to five years' imprisonment, to begin when his insanity commitment ended. On appeal, the Maine Supreme Court affirmed, pointing out that if Flemming had been sentenced to prison for murder and had escaped, a consecutive sentence would have been mandated. Courts in Talley v. Beavers, 80 S.E. 556 (Ga. 1913), Ex parte State, 43 So. 490 (Ala. 1907), and State v. Braggs, 221 N.E.2d 493 (Ohio Juv. 1966) came to similar conclusions.
22. Dunn v. United States, 284 U.S. 390 (1932).
23. Harris v. Rivera, 454 U.S. 339, 346 (1981).
24. United States v. Powell, 469 U.S. 67, 105 S.Ct. 471 (1984).
25. Hines v. State, 329 S.E.2d 479 (Ga. 1985).
26. In People v. Frye, 898 P.2d 559 (Colo. 1995), the defendant raped his victim at gunpoint. The jury found him guilty of second degree sexual assault and menacing with a deadly weapon. Frye appealed, arguing that the finding of not guilty on first degree sexual assault was inconsistent with the deadly weapon charge. The Colorado Supreme Court held that only by a most strained analysis could the verdicts be held to be consistent. The court took the case to reconcile Robles v. People (417 P.2d 232 (1966)), holding that verdicts cannot be inconsistent, and Crane v. People (11 P.2d 567 (1932)), which - held that they could. It chose to follow Robles (and the U.S. Supreme Court's decision in Edwards) in holding that except in the specific circumstances of Robles (guilty of conspiracy but not of murder, which was the only evidence of the conspiracy), inconsistent verdicts were a consequence of the right to jury trial. The decision provides a thorough review of case law from other states on inconsistent verdicts; most but not all agree with the Colorado court that inconsistency does not invalidate verdicts. See Frye at 570.
27. People v. Philpot, 98 Mich.App. 257, 296 N.W.2d 229 (Mich.Ct.App. 1980).
28. Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (Pa.Super.Ct. 1988).
29. Milam v. State, 255 Ga. 560, 341 S.E.2d 216 (Ga. 1986).
30. Supra note 16.
31. Supra note 15.
32. Utah v. Lindquist, 674 P.2d 1234 (Utah 1983).
33. Jones v. United States, 463 U.S. 354 (1983).
34. Jackson v. United States, 641 A.2d 454 (D.C.App. 1994).
35. Foucha v. Louisiana, 112 S. Ct. 1780 (1992).
36. Martel v. Fridovich, 14 F.3d 1 (1st Cir. 1993).
37. Ibid. at 2.
38. Ibid. at 2.
39. Abany v. Fridovich, 862 F.Supp. 615 (D.Mass. 1994).
40. Supra note 27.
41. People v. Sanchez. 520 P.2d 751 (Colo. 1974).
42. People v. Ingram, 582 P.2d 689 (Colo. 1978).
43. People v. Lyons, 521 P.2d 1265 (Colo. 1974).
44. People v. Sharpless, 635 P.2d 896 (Colo. 1981).
45. Civil patients, voluntary or committed, are guaranteed a number of civil rights that are not available to prison inmates. Significant problems exist when persons with active prison sentences are placed in hospitals, either under dual commitments or in direct transfers from prison for treatment unavailable in the prison system, and are denied rights that patients with similar disorders and behavior are granted. Similarly, civil patients who are transferred to prisons, such as under a Colorado statute (C.R.S. Sec. 17-23-101(3)) that permits such transfer for a patient who is "so dangerous that he cannot be safely confined in a state hospital..."
46. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court recognized a constitutional right to adequate medical treatment for "serious medical conditions." In Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) and other cases, federal appeals courts extended that right to include mental health treatment. As a result of such class action litigation, a number of state prison systems, including Colorado's, have established specialized facilities for mentally disordered inmates; unfortunately they provide better mental health care than is available to most inmates after they leave prison.
47. In Colorado prior to 1995 (all the study patients were tried before 1995), there were two separate mental-disorder defenses to criminal charges, which were tried in two separate phases of the trial. Defense attorneys frequently used the threat of litigating criminal responsibility twice to persuade prosecutors to agree to a plea bargain. In addition, Colorado is one of the few states that continue to place the burden of proving insanity, beyond a reasonable doubt, on the prosecution, providing defense attorneys with more leverage in plea bargaining. See Colorado Revised Statutes, Sec. 16-8-105(2).
48. Jonathan A. Olin, Stephen E. Pitt, Elissa M. Ball, Robert D. Miller, Gary Bevan and Charles Bennett, The Validity of Colorado NGRI Findings. Presented at the 23rd annual meeting of the American Academy of Psychiatry and the Law, Boston, MA, October 16, 1992; submitted for publication.
49. See, e.g., Colorado Revised Statutes, Sec. 16-8-102(4), which specify that an insanity acquittee is ineligible for release if "the defendant suffers from a mental disease or defect which is likely to cause him to be dangerous to himself, to others, or to the community, in the reasonably foreseeable future, if he is permitted to remain in the community." These criteria are consistent with the Supreme Court's decisions in Jones, supra note 24, and in Foucha, supra note 26.
50. Robert D. Miller, The Terry Hearings to Determine the Release of Offenders Committed Under Wisconsin's Sex Crimes Law. 61 WISC. BAR BULL. 17-19, 70-71 (1988).
51. Robert D. Miller, Mental Illness or Malice, 5 AM. J. FOR. PSYCHIATRY 53 (1984).
52. See Memorandum of Understanding Between Wisconsin Department of Health and Family Services and Wisconsin Department of Corrections, April 3, 1998; see also Letter of Agreement Between Department of Corrections and Department of Human Services, Colorado Mental Health Institute at Pueblo, Regarding Patients/Inmates with Dual Commitments, August 26, 1998.