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A GUIDE TO MENTAL ILLNESSAND THE CRIMINAL JUSTICE SYSTEM 

INTRODUCTION 

     Tragically, jails have become substitute psychiatric facilities for individuals with mental illness.  At the end of 2000, nearly one million individuals with mental illness were in the criminal justice system.  According to the United States Justice Department, more than 16% of jail inmates have a mental illness.  Furthermore, nearly two million new jail admissions each year are of people with mental illness -- 35,000 individuals a week (The Bazelon Center for Mental Health Law, Data on Individuals with Mental Illnesses in Jail and Prison Fact Sheet #3                        http://www.bazelon.org/issues/criminalizations/factsheets/criminal3.html).  In addition, data from a survey conducted of 1400 National Alliance on Mental Illness (NAMI) families revealed that 40 percent reported that family members with severe mental illness had been arrested one or more times. In fact, it has become an increasingly common practice for families to have a family member with mental illness arrested because incarceration is their only means of getting the person needed treatment (Susan Hendersen, Mental Illness and the Criminal Justice System, May 2003 p.3.  http://www.mhcc.org.au/projects/Criminal _ Justice/forensic.html).  These statistics indicate the failure of public mental health systems to provide appropriate care and treatment to individuals with mental illness.  

     This alarming data also reflects NAMI families’ and consumers’ need for information about the criminal justice system.  Personnel in these systems, such as police officers, prosecutors, public defenders, judges and jail employees may have limited knowledge and information about severe mental illness and the needs of those who live with these diseases.  In addition, the procedures, terminology, practices and rights of individuals used in the criminal justice system and jails may be confusing for people with mental illness and their families. 

     This guide is intended to serve as an aid for persons with mental illness -- and their families or advocates -- who are confronted with the criminal justice system.  However, since criminal justice procedures are complicated and differ from county to county, readers should also consult the laws and procedures of their counties and localities. Consequently, generalizations reflected in this guide may not accurately reflect criminal procedure or substantive criminal law as it exists in any particular county.   Furthermore, cases in the federal judicial system are governed by federal criminal procedure, which -- although similar to criminal law as it is practiced in the states -- has its own set of rules.  This guide is not a substitute for a lawyer.  Therefore it is essential to obtain a good criminal lawyer to direct you through any encounter with the criminal justice system. However, the information contained in this guide hopefully provides consumers, family members and advocates a basic understanding of the criminal justice system.  The guide also provides information and resources to enable family members and others to impact and advocate during the various stages of the criminal processes.    

      This guide contains detail that many readers will not need and, at the same time, insufficient detail for others.  The guide broadly addresses all the major issues that will confront a person with mental illness -- and that person’s family -- if he or she becomes involved with the criminal justice system.  Summaries are provided at the beginning of each section in order to provide an overview of each section’s important points.  Readers who require more detail and specific information about the laws can use the guide as a resource to identify issues that need exploration or clarification.   

THE CRIMINAL JUSTICE SYSTEM 

ENTERING THE SYSTEM 

  • ARRESTED – WHAT DOES IT MEAN? – AND WHAT DO I DO?
    Summary of Critical Points:
    An arrest occurs when the police take a person into physical custody for the purpose of charging that person with a crime.  Before law enforcement officials can make a lawful arrest they must believe that a crime was committed by the person to be arrested.

 If you or family members want to complain about your treatment during an arrest, transport to a facility or incarceration, be proactive and contact the department of the officer(s) involved in the alleged mistreatment and ask to speak with someone about the complaint.  The department may have a specific official, office and/ or form for such a complaint.

Generally, there are two types of criminal violations -- misdemeanors and felonies – and each is governed by slightly different procedures.

     An arrest occurs when someone is taken into physical custody by law enforcement so that they can be prosecuted for a crime.  When arrested, a person’s physical freedom is restrained by law enforcement.  In some cases, the police bring a person in for questioning without arresting him or her.  A person who is picked up for questioning by the police is NOT under arrest unless the police take that person into custody – meaning that he or she is not free to leave – for the purpose of charging that person with a crime. This is important in the context of a person with mental illness because an arrest does not occur every time a person with a mental illness is picked up or taken into custody by the police (See INTERROGATION below for a discussion of the rights afforded individuals who are not arrested, but brought in for questioning).

     There are two types of criminal violations for which a person may be arrested -- misdemeanors and felonies.  Generally, a person convicted of a felony may be sentenced to prison for a term of more than one year.  Crimes that are punished by incarceration of one year or less are misdemeanors.  Beyond the maximum possible period of incarceration, whether or not a crime is a felony or a misdemeanor is significant with respect to criminal procedure and constitutional rights.  For example, it is common practice in a misdemeanor case for a police officer to issue a citation to appear in court at a later date, rather than making an arrest.  Wherever necessary, this guide will note distinctions between misdemeanors and felonies.

     To make an arrest, the police must have “probable cause” to believe that a crime has been committed.  This means that before a police officer can make an arrest he or she must believe that: 1) a crime has been committed and; 2) the person to be arrested committed the crime.  Sometimes the police will have secured what is known as an “arrest warrant.”   An arrest warrant is merely a determination by a magistrate judge that the police have probable cause to make an arrest before the arrest is actually made.  A warrant is not required to make an arrest, and it will only be obtained prior to an arrest to avoid a later challenge to the arrest based on probable cause. Most arrests are made without a warrant, except notably a warrant is required to arrest a person in his or her home in a non-emergency. 

     If an arrest is made, the police will search the arrested individual and he or she will move on to the next step in the process called Booking (see BOOKING below).  However, before moving onto booking, a discussion of the importance of seeking legal advice during the criminal justice system is necessary as well as a discussion of obtaining mental health services for persons who are incarcerated.

  • THE IMPORTANCE OF A LAWYER 

Summary of Critical Points:
It is imperative to obtain a competent lawyer to direct you and/or your family through the criminal justice system.
Consumers and/or family members must consider several factors in determining whether to discuss an individual’s mental illness at the scene without first consulting a lawyer. 

     It is imperative to obtain a competent lawyer to direct you and/or your family through the criminal just system.  However, during some instances of an arrest (before a lawyer becomes involved), it may be important for the police to be notified quickly that the person they have in custody has a mental illness.  The question of whether or not to discuss an individual’s mental health depends upon the circumstances, the crime and the officers at the scene.  In some areas, police officers voluntarily participate in Crisis Intervention Training where they learn how to work with persons with mental illness.  These officers are known as CIT officers.  “The CIT approach is a community effort enjoining the police and the community together for common goals of safety, understanding and service to the mentally ill and their families.”  (Coordinating Center on Quality Assurance for CIT in Wisconsin.  Crisis Intervention Team training (CIT) for law enforcement in Wisconsin.  http://www.namifoxvalley.org/Wisconsin CIT-Jan08.pdf).  CIT officers learn to understand and calmly deal with issues related to mental illness that may arise when they are called to a disturbance.  For example, because of their training, in some instances, instead of making an arrest and starting the criminal process, CIT officers may determine to divert the individual directly to mental health treatment.  CIT officers help identify persons in need of community services, assist them in getting them connected to those resources and work towards keeping them connected.  Therefore, if a CIT officer is present at the scene, consumers and/or family members may feel comfortable discussing an individual’s mental illness.  If a CIT officer is not present, consumers and/or families may want to request that one be dispatched to the scene.   Attached is a map that outlines the counties in the state that have CIT trained officers available in select areas.  Consumers and families should be aware that not all officers are as experienced or sympathetic as CIT officers. 

     Disclosure that a person has a mental illness may make the police view the situation more seriously.  For example, one concern with disclosing an individual’s mental illness is that the disclosure may color the officer’s perception of the situation based upon his or her beliefs about mental illness.  Those beliefs may be favorable and advantageous to the situation.  However, if the circumstances appear that law enforcement will not be sympathetic or understanding, consumers and/or family members may consider that before disclosing any information concerning the psychiatric history of a family member, they should discuss it with an attorney. 

     If the family or the person with the mental illness does not have its own attorney and may not get one until one is appointed by the court, consumers and/or family members will have to use their judgment concerning what to disclose to the police.  As mentioned earlier, in making this decision, the family should consider that the police may not have the same view of mental illness as does the family and may know very little about mental illness. 

     In a misdemeanor case, if consumers and/or family members feel confident that the accused will be released to the family’s custody because of the mental illness, then they should bring a recent psychiatric report with them to the police station.  This report should indicate the accused’s need for immediate treatment and other pertinent information.  If it is determined strategically acceptable to disclose information about the mental illness to the police, consumers and/or family members may attempt to convince the station chief to transfer the accused to a suitable mental health facility as soon as possible so that he or she can receive treatment as the case is processed.  The procedure for a temporary transfer to a forensic facility varies dramatically by state and locality and may not be available or desirable in every area.   

FINDING A LAWYER 

Summary of critical points:
A person charged with certain crimes has an automatic right to a lawyer.
If you cannot afford a private lawyer you can locate a lawyer paid by the state or volunteer legal services through:

  • Public defender services
  • Court appointed attorneys
  • Local criminal defense lawyer associations
  • Local bar associations

     The United States Constitution guarantees every person accused of a crime an automatic right to a lawyer, the right to refuse from giving testimony that may incriminate them and the right to have a lawyer present during all questioning.  Competent criminal lawyers are available even if your budget is limited.  If you cannot pay a full fee for a private lawyer, the first place to seek a lawyer is through public defender services.  Because every individual accused of a felony is entitled to a lawyer, if an individual cannot afford a lawyer, the state must provide him or her with one and the state will either provide a public defender, or in areas where none exist, the state will appoint and pay for a private attorney.  Public defender organizations are state or local agencies that function as public law firms paid by the state to represent criminal defendants who cannot afford to hire private lawyers for their defense.   

    In densely populated areas, there is usually an available listing of attorneys who will take cases for needy clients on a pro bono basis.  A pro bono basis is a case that a lawyer takes without charging a fee.  Some lawyers will also take cases on a reduced-fee basis if they determine that the accused’s story is very compelling.  State and local bar associations are often good sources for lists of pro bono attorneys.  The National Association of Criminal Defense Lawyers as well as local associations of criminal defense lawyers publish lists of member attorneys, some of who take pro bono and reduced fee cases.

     In efforts to obtain a lawyer, it is important to ask potential attorneys if they are familiar with mental illness and have experience with cases involving individuals with mental illness.  If possible, try to obtain an attorney who is knowledgeable and experienced in this area.  In addition, in consulting with an attorney, it is imperative that you and/or family members are assertive and emphasize to the attorney the compelling human interest at stake in the case.  To that end, it is also critical that you and/or family members continually seek and provide relevant mental health information to the attorney so that he or she understands the issues involved and can effectively use the information to defend your case.

  • STEPS IN OBTAINING MENTAL HEALTH SERVICES FOR PERSONS WITH MENTAL ILLNESS WHO ARE INCARCERATED 

     Summary of Critical Points:
Every person in jail or prison with a “serious medical need” has a right to appropriate medical care, including persons with serious mental illness. 
An essential element for obtaining mental health services for persons in confinement is communication.
In many jails there are assigned mental health professionals who provide services.  Inquire about obtaining the necessary help from these professionals.
Ask about the appropriate steps needed to ensure that family members with mental illness receive their medications while incarcerated.
Families and advocates should urge officials that the ongoing treatment of severe mental illness is essential to prevent exacerbation of symptoms and to serve the best long-term interests of both the prisoner with the serious mental illness, and the correctional facility itself.

     All persons incarcerated in jails and prisons in the United States have a right to appropriate medical care.  However, this right arises only when a “serious medical need” for treatment exists.  Accordingly, it is very important that consumers and/or families of incarcerated individuals with mental illness demonstrate that the incarcerated family member has a “serious medical need” so that the jail or prison will be obligated to treat the mental illness.

     An essential element for obtaining mental health services for persons in confinement is communication.  It is important that law enforcement, consumers, family and other advocates pass all relevant information they have about an individual’s past mental health history and current behavior to the jail or prison staff.  For example, relevant information may include medications currently taken and knowledge about relevant symptoms. At the pre-trial stage, these efforts should focus on communicating information to the sheriff or jail administrator.  After conviction and sentencing, consumers and/or family members and advocates should communicate with the prison warden or the jail administrator and the chief medical officer at the jail or prison.  Treating psychiatrists or other mental health providers who were involved in the inmate’s treatment in the community prior to incarceration can be very helpful in communicating this vital information.  In appropriate circumstances, mental health professionals who have worked with the incarcerated individual may, abiding by confidentiality rules, provide useful information to the jail staff -- including verification of the medications needed for the individual.

     In addition, in many jails there are assigned mental health professionals who provide services.  They may work full-time inside the jail, make scheduled visits on a part-time basis, or may come on an as needed basis.  Most are skilled clinicians who can provide prompt assessment services and follow-up long-term mental health care.  These professionals work with a psychiatrist and usually a jail nurse.  Ask about the existence of these personnel and work with them to obtain necessary mental health services and/or medications for the incarcerated individual.   

     Unfortunately, the right to treatment is not without serious limitations.  This right only guarantees enough treatment to alleviate acute symptoms of mental illness.  Therefore, this right may not extend to the treatment necessary to prevent recurrent deterioration. Thus, families and advocates should urge officials that the ongoing treatment of severe mental illness is essential to prevent exacerbation of symptoms and to serve the best long-term interests of both the prisoner with the serious mental illness, and the correctional facility itself.      

  • BOOKING

Summary of critical points:
Booking is the process of finger-printing and photographing a person who has been arrested.

     Booking is the process of making a record of an arrest and proving the physical receipt of a person at jail.  At the jail, an arrested person is photographed, finger-printed, and all of his or her personal belonging are confiscated.  Arrested persons may be allowed the well-known “one phone call” at this time. 

  •  INTERROGATION OR QUESTIONING

Any person who is questioned by the police and is not free to end the questioning and leave the place where he or she is being questioned must be given a Miranda warning.
The police must immediately stop questioning anyone who asks for an attorney.

     The police may attempt to interrogate (or question) accused individuals about the specifics of the crime for which he or she was arrested.  In addition, even when a person is not arrested and booked they may be brought in for questioning and not be immediately free to break off the questioning and leave.  When either of these two types of questioning occur, the arrested person has certain automatic rights which are read to them by the police – these rights are called Miranda rights and are as follows:  the right to remain silent; that anything he/she says can be used against him/her in a court of law; that he or she has the right to speak with an attorney and if he/she cannot afford an attorney, one will be provided for him/her.  As soon as a person being questioned asks for a lawyer, the police must cease questioning that person entirely.  However, an accused can waive his or her right to have his or her attorney present as long as the waiver is “knowing and intelligent.”  This is very important in the context of a person with a mental illness because a confession given during a police interrogation is valid, even if the person questioned has a mental illness which prevented the confession from being of that person’s free will.  Therefore it is critical to get an attorney for a criminal suspect or defendant with mental illness as soon as possible.  Without an attorney present, the police may extract a confession from the accused without the accused realizing what is happening.  Even though evidence of the mental illness might be introduced at a later trial to discredit the confession, it still may not fully remove the impact of that confession.

     If an accused is given a psychiatric exam by a police psychiatrist but not warned of his Miranda rights before the exam, the statements made to the police psychiatrist by the accused cannot be used against him in a later trial.  Likewise, any statements that the police extract before giving Miranda rights are also not admissible at trial.  

  • AFTER BOOKING – THE DECISION TO FILE CHARGES 

Summary of Critical Points:
The decision to file charges is often made together by the police and the prosecutor’s office.
After consultation with an attorney, consumers, and/or family members should consider contacting the prosecutor directly to inform him or her of the nature of the accused’s mental illness and the effect of it on his or her behavior.

     After booking, the police will make a decision about whether or not to file charges.  Generally, this amounts to review of the arresting officer’s report by a superior or by a member of the prosecutor’s office.  In many jurisdictions, both the police and the prosecutor’s office will review the decision to file charges and what the charge will be.  After careful consideration and consultation with an attorney, consumers and or family members may want to consider contacting the prosecutor directly to inform him or her of the nature of the accused’s mental illness and its effect on his or her behavior.  By making the prosecutor aware of the success of drug therapy in the treatment of serious mental illness, consumers and/or family members may effectively encourage the prosecutor in his or her charging decisions.  In addition, if a CIT officer was involved with the case, consumers and/or family members should consider having him or her play an active role in consulting with the prosecutor about the appropriate charge.  A CIT officer’s non-biased experience with mental illness and the case at issue may be very beneficial to the defendant.  As part of this advocacy process, any individuals who contact the prosecutor, should be prepared with knowledge about the mental illness and supporting evidence that the defendant has been diagnosed with a mental illness and that his or actions may have been a direct result of that illness.  Consumers and/or family members should not contact the prosecutor without first discussing this strategy with an attorney.  Advocacy aimed at the prosecutor may greatly influence the charging decision.  For example, in some cases, a possible felony charge may be reduced to a lesser felony charge or even to a misdemeanor charge.

     When a decision is made about the appropriate charge, the next step is to formally charge the accused.  The usual procedure is for the prosecutor’s office to file a complaint with the magistrate’s court detailing the charges against the accused.  The filing of the document officially makes the accused a defendant in a criminal case.  The magistrate reviews the charges to determine if there is a sufficient legal basis to proceed. 

     It is important to note that as the case progresses, an initial charging decision may change.  Thus, it is important that consumers and/or family members or advocates, with the advice of their attorney, continue to negotiate the charges with the prosecutor.  Providing as much information about the accused’s mental illness and its impact on his/her actions may be imperative to these decisions.

  • INITIAL APPEARANCE AND SETTING BAIL 

Summary of Critical Points:
At the initial appearance the judge will appoint an attorney if the defendant is entitled to one and cannot afford one.
It is important to have an attorney present at the bail hearing.
At the hearing, the judge will also determine whether the accused should be held in jail or released on bail.

     After booking, defendants must be brought before a judge in open court within a reasonable time.  This initial appearance is often the morning after an arrest, but is seldom longer than 48 hours.  At this first appearance, the district attorney usually gives the judge and the accused a copy of the criminal complaint.  The complaint, a legal document charging the accused with a crime and providing some details of the alleged offense, is a public record and may provide the first reliable description of the prosecutor’s view of the case.  The complaint summarizes any statements made by the defendant to the police.   

     A judge or court commissioner presides over this hearing and usually decides whether the accused should be held in jail or released pending further proceedings.  Bail is the mechanism through which a person charged with a crime is allowed to remain free while their case is pending.  Bail’s purpose is to ensure that the defendant attends further proceedings in the case.  The actual charge or charges (misdemeanor or felony) and their classification may determine if, when, and how you can get out of jail. If the charges are a combination of felony and misdemeanor charges, then the court will use the more severe charge to determine your eligibility for bond. However, you should discuss your situation with your criminal defense lawyer as there may be alternatives provided by law.  It is especially important to have a lawyer at the bail hearing.  The prosecution may argue for considerable bail in a case involving a violent crime, and it is essential to have an effective advocate who can explain to the court the extenuating circumstance involved with mental illness and attempt to use the mental illness to justify a lower bail.  The decision whether or not to raise the issue of mental illness at the bail hearing should be made by the defendant’s attorney, who will have insight into the judge’s sensitivity to issues relating to mental illness.  

     In less serious cases, many defendants are released on bonds called “signature bonds” – which is merely a signature and a promise to return to court.  These bonds do not require providing the court with any cash or property.  Although these bonds state a certain amount that the defendant must post, this amount is the money or property the defendant is liable for if he or she violates the terms of the bond. 

     In more serious cases, the defendant may be required to post cash or property to ensure his or her appearance.  A cash bond may be immediately paid to the jail. Upon making bond, (also known as posting bond, paying bond), the arrested person will be released. The date upon which the bonded person must appear in court will usually be conveyed to them upon release by the jail. However, in some situations, the information will be provided by the clerk of courts and mailed to the arrested person's address.

     A cash bond can be made with money in the possession of the arrested person at the time of the arrest, by another person who brings the cash amount to the jail, or by credit card (for a significant fee).   

Misdemeanor bonds are almost always scheduled, which simply means that the jail will possess a schedule of bond amounts given the misdemeanor charge.

  • COMPETENCY TO STAND TRIAL

Summary of critical points:
No person can be tried or sentenced for a crime if – because of “mental disease or defect”-- he or she cannot understand the nature of the proceedings against him or her or assist his or her lawyer in preparing his defense.
A criminal defendant found not competent to stand trial is usually subject to civil commitment.

     No defendant can be tried or sentenced if -- because of a “mental disease or defect” -- he cannot understand the nature of the proceedings against him or cannot assist his lawyer in preparing his defense.   If, as at any time during the proceedings, including as early as the initial appearance, the court or an attorney suspects that the defendant lacks the mental ability to understand what is happening in court or to assist in his or her defense, the court can order the person to be examined for “competency.”  This examination can occur locally or at one of the state’s psychiatric hospitals.   If a doctor concludes that the defendant is competent or if the defendant is not competent but regains competency, the court case resumes.  If the defendant’s attorney, defendant, and/or family members disagree with the court’s decision, the defendant is entitled to have the question of his or her competence decided by the judge at an evidentiary hearing.  The court may commit the defendant to a mental health facility for up to a year (in most cases) if the court believes the defendant will regain competency.  If the defendant is not competent and not likely to become competent, the criminal proceedings are terminated and the defendant may be released or turned over to county authorities who may begin a separate civil commitment proceeding.   

     Significantly, the issue of competence to stand trial focuses on the mental state of the defendant at the time of trial, not his mental state at the time of the acts leading to the criminal charge.  This should be distinguished from the special plea of Not Guilty By Reason of Mental Disease or Defect (see NOT GUILTY BY REASON OF MENTAL DISEASE OR DEFECT below) where the issue is the defendant’s mental state at the time of the acts leading to the criminal charge. 

     Competency to stand trial may be less important in misdemeanor cases than in felonies.  This is true because in a misdemeanor case, if the defendant is so ill that he or she cannot stand trial, he or she will likely have been placed into the mental health system at an earlier stage in the proceedings.  

  • PRELIMINARARY HEARING ARRAIGNMENT AND SUBSTITUTION

Summary of Critical Points:
A defendant charged with either a felony or a misdemeanor is entitled to a preliminary hearing to determine whether there is probable cause to believe the crime was committed within the jurisdiction of the court.
If probable cause is found and a defendant is to be tried for the crime, he or she must be arraigned on the charges stated in a document called an “information.”
The arraignment proceeding is usually a formality where the defendant merely pleads guilty or not guilty or, if he or she remains mute, the judge enters a plea of not guilty. 
Defendants with mental illness should seriously discuss substitution of the judge with their attorneys.  Attorneys may be cognizant of certain judges who are or are not predispositioned about mental illness.

     In a felony case, the next step in the criminal justice process is a preliminary hearing.  A person charged with a misdemeanor is also entitled to a probable cause determination, but it is made by a court commissioner or judge at the initial appearance based only on a reading of the complaint.    

     The purpose of the preliminary hearing is to determine whether there is probable cause to believe a felony was committed.   The preliminary hearing is held quite promptly after the initial appearance, unless the accused agrees to a delay.  A judge conducts the preliminary hearing without a jury.  The prosecution presents witnesses and evidence.  Defendants may cross examine witnesses and may (but usually do not) present evidence or testify about their version of the case.  A defendant can agree to be bound over for trial without a preliminary hearing.  The magistrate can also reduce the charge if it is determined that the evidence offered can only support a lesser charge.  If there is found to be probable cause, the case is bound over for trail.  If probable cause to support the charges is not found, the case is dismissed. 

     If a defendant is bound over for trial, he or she must be arraigned on the charges stated in a document called an “information.” This proceeding usually is a formality; the defendant typically pleads guilty or not guilty, or if he or she remains mute, the judge enters a plea of not guilty. 

     A defendant has the right to ask that a different judge be assigned to a case.  This right of “substitution” may be exercised only once and it must be exercised before the defendant is arraigned or makes any motions.  The defendant is not required to give any reasons for the request for substitution.  The case may be reassigned randomly to another judge within the judicial district, or in some districts, the case will be reassigned to the judge in the district with the highest number of previous reassignments (as a result of substitutions, recusals or other reasons), in order to keep caseloads among the various branches of the court as equal as possible.

     Defendants with mental illness should seriously discuss substitution with their attorneys.  Attorneys may be cognizant of certain judges who are or are not predispositioned about mental illness.  For example, an attorney may know that a particular judge is not receptive to plea agreements based upon a defendant’s mental illness.  This is important information that may indicate the need for substitution of that judge.           

  • PLEA BARGAINING AND CHANGE OF PLEA

Summary of critical points:
Most criminal cases are disposed of through plea bargaining.
For the defendant with a mental illness, a plea bargain can achieve the goals of avoiding incarceration and assuring treatment.

     A vast majority of criminal cases are resolved by a defendant deciding to change his or her plea to guilty or no contest.  A guilty plea and a no contest plea have the same effect in criminal court – either way the defendant gives up all the same rights and, if the court accepts the plea, the defendant is convicted.  A change in plea usually is accompanied by an agreement between the State and defendant as to the recommendation the State will make to the judge about the sentence the judge should impose. Plea bargaining with prosecutors can occur at any point in a criminal case, even before charges have been filed. Many criminal cases are disposed of through a plea bargain rather than through a trial.   By promising to plead guilty, a defendant binds the State to make the sentencing recommendation it has promised.  However, a judge is not bound or required to follow any particular recommendation.  A judge may refuse to accept the plea bargain.   

     For the defendant with a mental illness, a plea bargain can achieve the goals of avoiding incarceration and assuring treatment.  A plea bargain may include specific elements, such as recommended sentence and place of confinement.

     It is important to note that a plea agreement must be accepted by a judge.  Thus, if the plea agreement was obtained even partly because of the prosecutor’s consideration of the defendant’s mental illness, the defendant’s attorney should come to the plea acceptance court appearance prepared to discuss and explain the mental illness.  This explanation may include providing documentation and /or testimony relevant to the defendant’s mental illness.  If a CIT officer has been involved with the case, the defendant’s attorney should consider offering his or her testimony in support of the agreement.  Judges may consider this evidence very credible and useful given that it is unbiased testimony from a police officer.  In addition, the defendant’s attorney should consider the benefits of having family members and other mental health advocates present in court during the judge’s hearing on the plea agreement in order to further influence the judge’s acceptance of the plea agreement.

  • TRIALS

Summary of critical points:
The defendant in a felony case has the right to trial by a jury
A misdemeanor case may be tried in front of a judge.
Defendants should discuss with their attorneys the possible benefits of requesting that the judge question jurors about their knowledge of, and opinions about, mental illness. 

     If a case cannot be resolved through a plea agreement, it must be tried.  Only a small percentage of cases are tried.  A trial is an adversarial process during which the prosecution and the defense get to tell their side of the events leading to the criminal charges.  A trial is a very technical exercise that involves extremely detailed rules about what can be said or shown.  Sometimes, although not often, a defendant decides for tactical reasons to waive his or her right to a jury trial and permit the judge to render the verdict.  This is called a bench trial. 

     In jury trials, juries are selected from a panel of prospective jurors.  During the jury selection, the judge and the lawyers question prospective jurors to determine if any should be excused because they cannot be open-minded and fair-minded about the case; for example they know persons involved or have opinions or experiences that would make them less than impartial.  Such persons may be dismissed for cause.  After any jurors have been dismissed for cause, the parties are allowed to take turns, using peremptory strikes, removing a predetermined number of names from the jury panel.  The lawyers need not give a reason for their strikes.  However, parties cannot base their preemptory strikes based solely on the basis of race, gender or age.  In the case of a person with a mental illness, defendants should discuss with their attorneys the possible benefits of requesting that the judge question potential jurors about their knowledge of, and opinions about, mental illness.  When this is raised, the judge may elect to question the jurors individually in chambers in order to solicit this sensitive personal information.

      Trial strategy varies greatly with the defense that is offered.  In cases of persons with mental illness, a Not Guilty By Reason of Mental Disease or Defect (discussed in detail below) may be used Whether or not a defendant testifies at the trial is generally decided by the defendant’s lawyer in conjunction with the wishes of the defendant.  The defendant is not required to testify at trial, and a great number of defendants do not testify. 

     In Wisconsin, the jury’s verdict in a criminal case, whether guilty or not guilty, must be unanimous.  If the jury returns a guilty verdict, the judge usually “polls the jury” to make sure that each juror individually agrees with the verdict.  If the jury cannot reach a unanimous verdict, the case is dismissed, but the prosecution can re-try the case before a new jury.   

  • NOT GUILTY BY REASON OF MENTAL DISEASE OR DEFECT

     Summary of Critical Points:
This  special plea provides that although the defendant did in fact commit the acts which lead to being charged, he or she is not legally responsible if, at the time the crime was committed, he or she was suffering from a mental disease or defect that rendered him or her unable to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the law.
This special plea is generally used in cases involving serious and violent felonies.

      Even if a defendant is competent to understand the proceedings and assist in his or her defense, he or she may assert that at the time the crime was committed he or she was suffering from a mental disease or defect that rendered him or her unable to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the law.  If a person makes this “special plea”, the trial is held in two parts or phases.  First, a judge or jury determines whether the defendant is guilty of the alleged crime.  If the defendant is found guilty of the crime, a second trial occurs to determine if the defendant was legally responsible when the crime was committed.  If a person is found both guilty and legally responsible, the judge imposes a sentence.  If a person is found guilty, but then found not legally responsible, the judge may commit the defendant for medical treatment.      

  • SENTENCING

Summary of critical points:
A person convicted of a crime, either by pleading guilty or by a guilty verdict after trial, must be sentenced by the judge.
The pre-sentence report is the report on which the judge bases much of his sentencing decision.
With the approval of an attorney, families and advocates should contact the probation officer preparing the pre-sentence report to provide information about mental illness and treatment needs.
In case no pre-sentence report is ordered, the defendant’s attorney should be prepared at the time of verdict to offer information about the defendant’s mental health.

     A person convicted of a crime, either by pleading guilty or by a guilty verdict after trial, must be sentenced by the judge.  Sentencing hearings can take place immediately upon conviction or after a few days or weeks.  In some cases, the judge may decide that the case is ready for sentencing immediately.  In addition, the judge’s discretion to set sentences for a particular crime may be limited by statute or the judge may be obligated to consider specific sentencing guidelines promulgated by the State Sentencing Commission or its predecessor.  Where the judge does have discretion over the sentence, the judge may order a pre-sentence report which is compiled by a state parole or probation agent.    Factors such as criminal record, family life and employment history will be given great weight in the pre-sentence report.  With the approval of an attorney, consumers and/or family members should seek out the probation officer preparing the report and explain the nature of the mental illness and treatment needs.  The existence of mental illness can influence the sentencing through the pre-sentence report.  Furthermore, at the sentencing hearing, the defense may also provide information that they feel is relevant to the determination, including information from CIT officers, families, the defendant, and local mental health associations.  In many cases, interested persons may submit letters, which if reviewed by the judge, should be made part of the court file. 

    As stated, in some cases, the judge may set a sentence at the same hearing as the trial in the case.  This means there is no pre-sentence report.  Therefore, consumers and/or families and advocates should speak with the defendant’s lawyer so that the lawyer can be prepared to ask the judge to hear from the offender’s family concerning sentencing and, if appropriate, CIT officers involved in the case, and the defendant’s mental health professionals.  If necessary, the defendant’s attorney should come prepared with documents or statements from relevant mental health providers about the defendant’s mental health and its relevance to the crime. 

  • APPEAL

Summary of Critical Points:
An appeal is a review of a trial judge’s decision that is challenged by one of the parties to the trial.
An appeal is limited to issues of judicial error.

     An appeal is a review of a trial judge’s decision by a higher court.  The defendant’s right to appeal a conviction is automatic.  The only issue that is open to appeal is whether or not the judge made a legal error during the trial.  A conviction can be overturned where there was substantial legal error.

     A conviction may be reversed and a new trial ordered in some cases.  In other cases, errors by the trial court judge may be deemed to have been harmless, and the conviction will be upheld even though there was some error by the trial court judge. 

CONCLUSION

     Any engagement with the criminal justice system will be emotionally charged, frightening and confusing – especially for a person who has never encountered the system before.  Therefore, in conclusion, this guide offers readers some general advice when dealing with the system.

  1. Stay calm and in control.

Always try to stay as calm as you possibly can.  The more that you are able to remain calm and speak clearly, the more control you will have over the situation.  No matter how angry or frustrated you become, never shout or scream.  This is not to say that you should not be angered by the manner in which persons with mental illness are treated by the system.  Rather, the better way to channel your anger is by maintaining control of the situation.

2.    Use the system and information to your advantage.

Many personnel in the system, such as CIT trained officers, prosecutors, public defenders, judges and jail employees may be sympathetic to and knowledgeable about mental illness.  Whenever possible use these individuals to provide assistance, information and testimony about your case.

3.    Get Public Exposure of Your Situation.

The more public exposure your situation gets, the more likely it is that a miscarriage of justice will be corrected.  Letter writing is an effective tool to gain exposure.  If you, or a family member with a mental illness, are abused by the system, write letters and file complaints.  Write to the police who were involved, to the superiors of those police officers, to the police commissioner, to any judge involved in the proceedings, to your local elected representatives, state representatives, to newspapers, editors, or local television stations.  In addition, consult advocacy groups for persons with mental illness, as they too may be able to add to your cause.

4.    Get help and advice from an attorney.  In addition, be your own advocate, and continually seek and provide your attorney with information that enables him or her to understand the mental health issues involved and to use this information to effectively defend your case.

This guide is not intended as a substitute for legal advice.  Never try to go through the criminal justice system without a lawyer.  Furthermore, it is imperative that you and/or family members and advocates are assertive and emphasize to the attorney the compelling human interest at stake in a case.  To that end, it is also critical that you and/or family members continually provide relevant mental health information to the attorney so that he or she understands the issues involved and can effectively use the information to defend your cause.

5.    Insist on Answers.

You must always insist on an explanation of things you do not understand.  In going through the criminal justice system you will be inundated with information or terms that may not make sense to you.  Lawyers, including your own, will use unfamiliar terms.  In addition, judges and law enforcement may ask you to agree to something that you do not fully understand.  Therefore, you must get information and answers to every question you have about any issue.  In the end, you are the person who will suffer consequences if you fail to understand.  Therefore, insist on getting explanations.

THE FOLLOWING INDIVIDUALS DRAFTED AND REVIEWED THIS GUIDE

Amy E. Dombrowski
Jennifer Lowenberg
Karen Aspenson
Janet Enters
Daryl Jensen
Joann Stephens
John Quaal

2008
www.namiwisconsin.org

 

 

 


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