National Alliance on Mental Illness
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Working with Public Defenders: Q&A with Stephen Bush
Stephen Bush is the Chief Public Defender in Shelby County, Tenn. Shelby County’s Jericho Project is an innovative program that provides post-booking (after arrest) jail diversion to people with serious mental illnesses and co-occurring substance abuse disorders. We asked Mr. Bush to help us answer common questions about public defenders and how individuals and families can work with them when a person with serious mental illness has been arrested.
Q: What is the role of the public defender and what role can family members have in communicating with a public defender?
Often, the public defender is the only advocate a person with mental illness has in the justice system. The public defender’s job is to represent the interests of the individual charged with an offense, and act as advocate and counselor through the attorney-client relationship. Our job is to protect the due process rights of the individual and to develop and guide a high-quality defense. I think public defenders also have a second role, which is to explore and engage social services, where doing so is helpful to the client.
Families and advocates can be the single most important source of relevant information regarding a client living with serious mental illness. There are restrictions on what a public defender can share with a third party (including family members), but there are no restrictions on the information that families and advocates can provide to the public defender.
Q: If my loved one has been arrested and doesn’t want his or her public defender to give me information about the case, is there anything I can do?
If the client says he or she doesn’t wish for the public defender to share certain information with family about the case, that directive must be respected by the attorney. I almost always encourage clients to give me permission to speak with their families—preserving key relationships is always an important goal—but a public defender has a legal and ethical obligation to protect the confidentiality of client communications.
The public defender is not your enemy! However, I know families get frustrated when the public defender cannot share confidential information. Public defenders should acknowledge this frustration, and make it clear that someone is paying attention to their loved one’s case and working on it. Regardless of the client’s wishes, the public defender can provide that basic assurance. The public defender should also politely explain to the family why there may be limits to the information they can share.
Q: How can family members share information with the public defender if he or she doesn’t seem open to communication?
The public defender will be more successful in providing a good defense if he or she is better informed. Family members need to be polite, but persistent in providing information. It’s helpful to understand that the public defender systems everywhere are underfunded and understaffed. It’s very similar to the community behavioral health system; these professionals are overwhelmed. Case managers and public defenders have more work than they can get done. Often, attorneys are in court all day, meaning they have very little time to prepare cases and communicate with clients and their families.
For this reason, family members will get the best reception if they are polite and respectful of the public defender’s time. If it’s possible to meet face to face, that’s best. I suggest family members try to make a brief personal introduction at the initial hearing for their loved one’s case, and offer their assistance. It’s important to make yourself helpful to the attorney. During this introduction, say, “Thank you for what you are doing to represent our loved one. I’m happy to provide whatever information would be helpful to you. What’s the most convenient way to share that information with you?” Recognize it can be very difficult for the attorney to stop on a dime for a lengthy conversation, but a personal connection will make it an easier task.
If repeated, respectful efforts to open a channel of communication are unsuccessful, you can be more assertive. For example, you may mail a summary of your loved one’s medical information to the public defender’s office with a return receipt request. Play nice at first, but persist until you can communicate the information you think is important.
Q: What sort of information should a family member share with the public defender?
Q: My loved one has a serious mental illness, but the public defender is not raising this issue in court. Why not?
Attorneys are very uncomfortable discussing legal strategy with a third party; many strategic decisions about the case are confidential between attorney and client. The “insanity defense” is rare, but if, for example the individual was in an acute psychotic state at the time of the offense, the attorney might make a case for the insanity defense or diminished capacity.1 In many states, the client must agree to this sort of defense. There are situations where the client restricts the attorney’s ability to use serious mental illness in the defense, and attorneys have to follow their client’s wishes.
However, there are scenarios where the public defender is ethically required to raise mental illness. For example, if the attorney believes their client lacks present competence2 to stand trial, the attorney has an obligation to raise their concern, regardless of the client’s wishes.
Q: Do public defenders avoid using mental illness in a defense because it will weaken the individual’s case?
No, I don’t think so. Public defenders share the same stigma and misunderstandings about mental illness as the broader society. Public defenders should receive comprehensive training about the dynamics of mental illness and the impact of stigma. They can learn to re-frame mental illness as a mitigating factor and erase the negative connotations. Mental illness can play an important role in the negotiations between public defender and prosecutor, as well as during a trial, sentencing and reentry.
In cases where an untreated mental illness is a direct cause of the contact with the justice system, the prosecutor is often looking for a plan that is geared to address the problem. If a client embraces ongoing treatment as part of a plan for recovery, it can be a powerful tool for the lawyer, especially if there are links to ongoing services in the community. Public defenders are natural advocates for clients with mental illness if there is an opportunity to re-engage in treatment, add or change medication or improve the current treatment. In my experience both prosecutors and courts welcome options that support recovery where the client is willing to embrace continuing treatment and services in the community.
Judges and juries can give harsher sentences if serious mental illness is not used in the defense. In addition, people with mental illness in state prisons spend on average 15 months more in prison than people without mental illness with similar charges and sentences.3 When judges, prosecutors and defense lawyers are not well educated about mental illness, there is a real danger the ultimate outcome of the case will be affected by the stigma that persons with mental illness encounter in so many areas of their lives. Where there is a low level of education about mental illness in court, it will always work against the individual.
All criminal justice professionals need to be trained about mental illness, and specifically about the connection between mental illness and violence. A person with mental illness is much more likely to be a victim of violence than a perpetrator. Public defenders should be trained to seek out medical records and discharge papers–they need to counsel clients that this is important information to their defense. Every urban public defender service should have access to the behavioral health system. With the high prevalence of serious mental illness, this is just part of their jobs.
Q: What are some of the common legal and other issues that public defenders encounter in working with people with mental illness?
It’s important for public defenders to understand that people with mental illness typically spend more time in jail awaiting resolution of their case than those without mental illness. There are distinct factors at every stage that can cause a delay, including a pre-trial forensic evaluation, a public defender too busy to gather the relevant medical history and a slow indictment process. Every delay is an opportunity for the individual to decompensate. These delays—we call them caselag factors—are cumulative, and they result in detainees with serious mental illness consuming a vast disproportionate share of jail resources.
Estimates of the number of people with mental illness in the justice system vary widely. A lot of recent reports expand the definition of mental illness. However, if you focus on people with serious and persistent mental illness4 then I think it’s about 7 percent overall, and 12-13 percent of women. This small percentage takes up a disproportionate amount of time and resources. Unfortunately, many jail diversion programs exclude those with the most serious illness and the greatest need.
Q: Are public defenders aware of the jail diversion programs in their community?
Public defenders should be aware of all jail diversion programs and resources. Unfortunately, a lot of jail diversion programs have left public defenders out of the process. Specifically, programs that require the defendant to plead guilty to participate in a program may actually create new jail diversion barriers and alienate public defenders. The public defender’s job is to protect an individual’s rights, and there is no reason a person with mental illness should have to give up his or her Constitutional rights to access treatment and services. I believe jail diversion programs should judge eligibility on a case-by-case basis, with collaboration between the public defender and the prosecutor. In Memphis, we believe it is our obligation to advocate for jail diversion for our clients as part of our defense strategies. By respecting the dynamics of the adversarial system in this manner, we have found prosecutors very open to considering post-booking jail diversion options. So much so, that it is now a common event that the prosecutor will ask the public defender to consider Jericho Project resources as part of a negotiated release or disposition.
Q: Are there any resources public defenders can use to learn more about mental illness and the options available to help keep people with mental illness out of the justice system?
I would suggest the monograph from the National GAINS Center on the working with people with mental illness.
1 Editor’s Note: Legally, “insanity” generally means that the individual is so severely ill that they cannot tell reality from fantasy, cannot care for themselves or that they are subject to uncontrollable, impulsive behavior. State laws on the insanity plea vary: a full explanation is online in Section 10.9 of NAMI’s Public Policy Platform. Diminished capacity is the argument that due to emotional distress, physical condition or other factors, the individual did not fully comprehend the nature of the offense. Diminished capacity may serve as a justification for reducing the severity of the verdict or sentence.
2 A person can be ruled “incompetent” to stand trial if he or she has a mental illness or other condition that keeps him or her from understanding the legal process and participating in the defense.
3 Ditton, P.M. (1999). Mental Health and Treatment of Inmates and Probationers. Bureau of Justice Statistics Special Report. Washington, DC; United States Department of Justice, Office of Justice Programs.
4 Serious and persistent mental illness (SPMI) is a designation for illness that has lasted more than 6 months and is significantly disabling.