Rotherham v. New Mexico
INTERESTS OF THE AMICI
The National Alliance for the Mentally Ill (NAMI) is a national, grassroots advocacy organization of families of persons with serious mental illness and persons with serious mental illness themselves. Composed of over one thousand local affiliates and 140,000 members, its goals are to advance treatment and services for persons with serious mental illness and provide public education about serious mental illnesses as treatable medical disorders. An important part of NAMI's mission is to advocate in behalf of persons with serious mental illnesses in criminal justice facilities. In this capacity, NAMI maintains a national network of forensic advocates, comprised of representatives from all fifty States.
The Alliance for the Mentally Ill of New Mexico ("The Alliance") is a chartered State Affiliate of the National Alliance for the Mentally Ill. The Alliance is composed of fourteen affiliates with approximately four hundred members in the State of New Mexico. The Alliance has been extremely active in advocating in behalf of persons with serious mental illness involved with criminal justice systems in the State of New Mexico. It has sponsored public forums and recently issued a report on mental illness and the criminal justice system to the Governor's Interagency Taskforce.
For the reasons delineated above, amici are uniquely qualified to assist the Court in understanding the issues raised in this case.
STATEMENT OF THE CASE
Christopher Rotherham was arrested on May 31, 1989 in connection with the death of a man who was run over by a car allegedly driven by Mr. Rotherham. He was indicted on a charge of first degree murder (willful and deliberate) or in the alternative, second degree murder. From all reports, Mr. Rotherham, who has been diagnosed with bipolar disorder, was not receiving treatment and was psychotic at the time of the alleged crime. He was found incompetent to stand trial on June 16, 1989 and committed to the Forensic Treatment Unit (FTU) of the Las Vegas Medical Center (LVMC) for treatment to attain competency to stand trial.
Mr. Rotherham has remained in the FTU since that time.
On August 3, 1992, a hearing was held in District Court to evaluate Mr. Rotherham's competency and dangerousness, pursuant to NMSA 1978, Sec. 31-9-1.2. The State submitted evidence that Mr. Rotherham was not competent to stand trial and would not become competent within the foreseeable future. John Gatling, M.D., Co-Director of the FTU, testified that LVMC hoped to establish a "fast track" program for treatment to competency and that Mr. Rotherham might be a candidate for this program. Therefore, the Court entered an order continuing commitment of Rotherham in the FTU and deferred the State's election under NMSA 1978, Sec. 31-9-1.4 until January, 1993.
On April 6, 1994, the Court granted the State's motion to pursue criminal commitment pursuant to NMSA 1978, Sec. 31-9-1.5 (hereafter cited as "section 1.5"). Under this section of the Code, if the Court finds that the defendant committed the crime and further finds that the defendant is dangerous, it shall order him/her to be detained in a secure, locked facility. The State's practice is to detain all such defendants in the criminal wing of the Las Vegas Medical Center (LVMC). Although a review of the case is required every two years following an order of criminal commitment, the defendant may be held in this status for a maximum period not to exceed the maximum sentence for the crime with which he/she was charged. In Mr. Rotherham's case, the criminal commitment could continue for a period of up to thirty years.
Amici believe that the procedures set forth in Section 1.5 and the limited treatment available to individuals criminally committed pursuant to that section violate Mr. Rotherham's due process and equal protection rights protected by the United States Constitution. Amici recognize that Mr. Rotherham will very likely require long term treatment in a supervised setting. However, the State is obligated by the Constitution to provide him with access to the same treatment and rehabilitative services that are available to individuals subject to civil commitment in New Mexico.
I. THE LONG-TERM INCARCERATION OF CHRISTOPHER ROTHERHAM IN THE FORENSIC UNIT OF LAS VEGAS MEDICAL CENTER VIOLATES HIS RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS UNDER THE XIV AMENDMENT OF THE UNITED STATES CONSTITUTION.
A. Jackson v. Indiana requires the State of New Mexico to either institute civil commitment proceedings against Mr. Rotherham or to release him.
In June, 1989, when Christopher Rotherham was initially found
incompetent to stand trial and committed to the FTU, the State's obligation was to provide treatment to enable him to regain sufficient competency to stand trial. However, the power of the State to commit an individual for the purpose of providing treatment necessary to regain competency to stand trial is time limited.
In Jackson v. Indiana, 406 U.S. 715; 92 S.Ct. 1845 (1972), the U.S. Supreme Court held that the mere filing of criminal charges cannot suffice to justify the indefinite commitment of individuals without appropriate procedural and substantive protections. Id at 724. The Jackson case involved an individual with mental retardation and deafness who was charged with two minor offenses and then committed to a mental health treatment facility despite uncontroverted evidence that he was unlikely to ever attain sufficient competence to stand trial. Noting that Indiana's procedures for criminal commitment effectively amounted to a commitment for life, the Court held that the commitment of Jackson for an indefinite period constituted a deprivation of his right to equal protection of the laws and to due process under the 14th Amendment of the Constitution of the United States (hereafter U.S. Constitution).
In addressing the equal protection claim, the Jackson Court considered a previous Supreme Court decision which held that convicted prisoners who serve their sentences in maximum security forensic hospitals must either be released or afforded the same procedural protections as those individuals committed through the civil commitment process. The Court further extended this principal directly to criminal defendants found incompetent to stand trial. "If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protections against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice." Jackson v. Indiana, Id. at 724. Therefore, the Jackson decision expressly provided that persons who are held on the basis that they are not competent to stand trial are entitled to the same procedural protections as persons held pursuant to an order of civil commitment.
As to the due process claim, the Court acknowledged that the State has a legitimate interest in holding individuals for purposes of providing treatment to restore their competency to stand trial. However, the State may not hold an individual on this basis "for a period longer than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future." Id at 738. Accordingly, Jackson requires that persons who are found not competent to stand trial must either be released or civilly committed within a reasonable period of time.
The Jackson Court did not specify just what constitutes a "reasonable period of time" to determine competency. However, this has been addressed by a number of State courts and State legislatures. Some courts have applied specific time limitations for competency commitments. For example, the Supreme Court of Appeals for West Virginia has held that, absent specific legislative action on the subject, the time limit for holding a person for the purpose of determining competency to stand trial should be sixty days, and the time limit for treating an individual to regain competency should be six months. State Ex Rel Walker v. Jenkins, 203 S.E. 2d 353,357 (Sup. Court of Appeals, West Va., 1974). See also, State Ex. Rel Haskins v. County Court of Dodge County, 214 N.W. 2d 575, 581 (Sup. Court of Wisconsin, 1974), "we conclude ... that the ultimate retention of a defendant ... should be limited to eighteen months."
Other Courts have not imposed arbitrary time limits, but have carefully considered factors such as the length of competency commitment, the progress that the person has made during the course of his/her commitment, and the testimony of experts concerning the likelihood of sufficient improvement to regain competence in the foreseeable future. Courts tend to be significantly influenced by the opinion of experts concerning an individual's progress towards attaining competence and the likelihood that competence will be attained in the foreseeable future. Therefore, most Courts have ruled that the requirements of Jackson are triggered if little progress towards competence has occurred after an adequate period of treatment. Courts have also invoked the requirements of Jackson if, as in this case, expert testimony at a review hearing reveals that the individual is unlikely to attain competency in the foreseeable future.
Some States have established statutory time limitations for competency commitments. For example, the California Penal Code stipulates that the medical director of the facility which is providing treatment must submit a report to the Court within 90 days of a competency commitment. If the report reveals that there is no substantial likelihood that the defendant will regain competency in the foreseeable future, the Court must either institute commitment proceedings in accordance with California law or release the defendant. Calif. Penal Code, sect. 1370(b)(1).
If the 90 day report discloses "a substantial liklihood the defendant will regain mental competence in the foreseeable future", the State is authorized to continue holding the defendant in the "treat to competency status", but must provide progress reports to the Court at six month intervals. However, California limits a criminal commitment to a maximum period of three years. At the end of this period, the Court must either institute civil commitment proceedings or release the defendant. Calif. Penal Code, sect. 1370 (c)(1).
The California statute clearly reinforces the requirements set forth in Jackson that an individual may not be held indefinitely in a "treat to competency" status if there is no substantial likelihood that he/she will attain capacity in the foreseeable future. The decision in Jackson was predicated upon more than mere concern about status or classification of a case under the criminal codes of the various States. Rather, it was grounded in the Court's belief that the indefinite incarceration of defendants, never tried or convicted of charged crimes, merely on the basis of their incompetency, was a fundamental violation of the procedural due process rights of those defendants under the U.S. Constitution. The continued detention of those individuals, the Court held, required the same procedural safeguards as would be available to those individuals under the civil commitment authority of the particular
States detaining them. Jackson v. Indiana, Id.
B. Article 9 of the New Mexico Code governing criminal procedure violates the provisions of Jackson v. Indiana because it authorizes the State to hold persons in a "treat to competency" status for an excessive time period.
Article 9 of the New Mexico Code fails to meet the Jackson requirement of a clear time limit for holding a person in a "treat to competency" status. It is true that the law now specifies that a defendant's competency must be reviewed not later than one year from the original determination of incompetency. Sect. 31-9-1.4(D)(1) NMSA 1978. However, the law also appears to vest authority in the District Court to keep defendants in the FTU beyond this time "if the defendant is in need of continued care and treatment and the supervisor of the defendant's treatment agrees to continue to provide it." Id, Sect. 31-9-1.3(E).
Furthermore, even after the Section 1.5 hearing occurs, the statute appears, in effect, to allow the State to maintain defendants such as Mr. Rotherham in an indefinite "treat to competency" status. The State is required to review the condition of defendants every two years after an initial determination that the defendant committed the crime and is still dangerous. However, following the Section 1.5 hearing, if the defendant is found at any time to be competent to proceed in his/her criminal case, the court is authorized to continue with the criminal proceeding. Section 1.5((D)(4)(a). As the State, under Section 1.5, may hold defendants for up to the maximum duration of their sentence, this means that individuals conceivably could eventually regain competence and be subjected to a criminal trial decades after being found not competent to stand trial. This is in clear disregard of the requirement set forth in Jackson that individuals may only be held in treat to competency status for a "reasonable period of time." Id. at 733.
C. Section 1.5 of the New Mexico Code violates Jackson v.Indiana because the procedures set forth for long-term criminal commitment in Section 1.5 are not tantamount to civil commitment.
Article 9 of the New Mexico Code fails to comply with the requirement, set forth in Jackson, that legal authority for continued hospitalization of individuals considered dangerous but unlikely to become competent in the foreseeable future, such as Mr. Rotherham, exists only through civil commitment and not through indefinite, long-term criminal commitment. The evidentiary hearing provided in Section 1.5 is not equivalent to the civil commitment procedures in the Mental Health and Developmental Disabilities Code in New Mexico. Chapter 43, Article 1 NMSA 1978. Rather, it is more closely analogous to a criminal trial.
The primary purpose of the Section 1.5 hearing is "to introduce evidence relevant to the question of the defendant's guilt of the crime charged." Section 1.5(A). This has the effect of introducing the issue of criminal culpability into a procedure which is really focused on long-term commitment and therefore amounts to a criminal trial. This is contrary to the clear prohibition under the U.S. Constitution of trying criminal defendants who are determined incompetent to appreciate the purpose of their trial or participate in a meaningful way in their own defense. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966); State v. Gallegos, 111 N.M. 110 (App., 1990).
Because of its quasi criminal nature, the defined purpose of criminal commitment proceedings in Section 1.5 is very different from that of civil commitment hearings in New Mexico's Mental Health and Developmental Disabilities Code. Id. As stated above, the purpose of the Section 1.5 hearing is to evaluate the sufficiency of evidence of criminality to justify continuing, long-term detention of the defendant in a "secure, locked" facility. Id. Although this detention may involve treatment, its primary purpose appears to be punitive. Conversely, the purpose of civil commitment in Chapter 43, Article I is therapeutic. Its objective is to provide "evaluation and treatment" Id, Section 43-1-11(A). Treatment is defined as "any effort to accomplish a significant change in the mental or emotional condition or behavior of the client." Id., Section 43-1-3(T).
The differences in the overall purposes of civil and criminal commitment in New Mexico is further illustrated by differences in the case review requirements between the two categories. The Mental Health and Developmental Disabilities Code affords all adult clients who are involuntarily civilly committed the right to an initial hearing within seven days of admission. Id., Section 43-1-11(A). At this hearing, the client must be represented by counsel and is afforded a broad array of rights, including the right to representation by counsel, the right to testimony by an independent mental health professional and the right to cross-examine witnesses. Id.
Following the initial seven day commitment, the client has the right to a hearing after an additional thirty days. Id., Section 43-1-12. After this, subsequent hearings must be held every six months except that after two consecutive periods of commitment, the hearing must occur once each year. Id. Conversely, Section 1.5 only requires a hearing every two years following initial criminal commitment orders. Section 1.5(A). Moreover, the statute is silent concerning whether the defendant will get assistance of counsel throughout the process, whether he/she has the right to testimony by an independent mental health expert and the defendant's right to cross-examine witnesses.
The Jackson decision was predicated upon concerns that existing laws such as that in Indiana enabled States to massively curtail the freedoms of individuals such as Mr. Jackson without due process of law. As argued above, amici believe that Section 1.5 does not adequately protect defendants from such massive curtailment of their liberties. Furthermore, amici also believe that Section 1.5 facilitates placements which deprive defendants such as Mr. Rotherham of appropriate and necessary treatment for their mental illness.
II. THE TREATMENT AFFORDED MR. ROTHERHAM IN THE FORENSIC TREATMENT UNIT OF LAS VEGAS MEDICAL CENTER DOES NOT COMPLY WITH MINIMAL CONSTITUTIONAL STANDARDS.
A. As a person who has been criminally committed, Mr. Rotherham's status is equivalent to a person who has been civilly committed.
As described earlier in this brief, the procedures under Section 1.5 do not afford defendants such as Mr. Rotherham the same rights as possessed by individuals who fall within the civil commitment authority of the State of New Mexico. Nevertheless, the State continues to detain Mr. Rotherham in the FTU on the basis of his incompetence and his dangerousness, even while admitting that with the current resources of the FTU, "there is no substantial probability" that Mr. Rotherham will attain competence in the foreseeable future. Transcript of Proceedings, TR-11 (December 8, 1993), testimony of John Gatling, M.D. (Hereafter hearing of December 8, 1993.)
Although the Section 1.5 evidentiary hearing has not yet occurred, the length of Mr. Rotherham's detention has far exceeded the period which would be considered reasonable under the test set forth in Jackson. Therefore, Mr. Rotherham, a person subject to a de facto criminal commitment, possesses the same rights to treatment and humane care as is possessed by individuals who are subject to involuntary civil commitments. Amici strongly assert that the care and treatment available to Mr. Rotherham in the FTU does not meet minimal requirements under either the Due Process or Equal Protection clauses of the Fourteenth Amendment of the U.S. Constitution.
B. Individuals such as Mr. Rotherham who are criminally committed have a right grounded in the Due Process Clause of the Fourteenth Amendment to adequate treatment
The right of persons in institutional settings such as the FTU to appropriate treatment and habilitative services was addressed by the U.S. Supreme Court in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct 2452 (1982). In that case, the Court held that the plaintiff, an institutionalized individual with profound mental retardation and a history of aggressive, self injurious behaviors, was entitled to minimally adequate training necessary to protect his liberty interest protected by the Due Process Clause of the Fourteenth Amendment to "safety and freedom from unreasonable restraints." Id, 102 S.Ct. 2452, 2461.
In Youngberg, the Court explained that when a State acts to institutionalize or otherwise restrict the liberty of an individual, it incurs a "duty to provide certain services and care." Id. at 2459. Because the severity of Nicholas Romeo's condition precluded him from functioning independently, or even in a less restrictive setting, the Court limited the State's obligation to training and habilitation necessary to enable him to function safely, without unnecessary physical or other types of restraints. However, the Court recognized that the extent of the State's duty to treat would differ from case to case, in accordance with the particular circumstances of each case. Rather than leave it to other Courts to decide what is sufficient, the Court emphasized that the determination of specific levels of training necessary to ensure safety and to facilitate the ability to function free of unnecessary restraints on liberty should be made by qualified professionals. These determinations, the Court stated, "are entitled to a presumption of correctness." Liability may be imposed only when the decision by the professional is a "substantial departure from accepted professional judgement, practice, or standards." Id. at 2462.
Subsequent decisions which have interpreted Youngberg clearly demonstrate that the decision was not limited to circumstances in which individuals were kept in physical restraints or other such barriers to free movement. The Youngberg analysis has been applied by numerous Courts considering the rights of institutionalized persons with mental illness or mental retardation to care and treatment necessary and appropriate to enable them to function in less restrictive settings.
For example, in Association for Retarded Citizens of North Dakota v. Olson, 561 F.Supp. 473 (N.D., 1982), a U.S. District Court in North Dakota held that the criteria set forth in Youngberg should be applied in determining the right to treatment of mentally retarded residents of a State hospital. While holding that not all residents were necessarily entitled to the least restrictive care and treatment, the Court did hold that such a right exists when "professional judgement determines that such alternatives would measurably enhance the resident's enjoyment of basic liberty interests." Id. at 487. See also, Woe v. Cuomo, 729 F.2d 96, 105, (1984), "The question suggested by Youngberg, then, ... is whether the treatment decision was professionally made and falls within the scope of professional acceptability"; Clark v. Cohen, 794 F.2d 79, 96 (3rd Cir.) (Becker J., concurring), "Liberty is more than merely the absence of physical confinement".
1. The treatment available to Mr. Rotherham in the FTU does not comport with professional judgement as required by Youngberg v Romeo.
The treatment available to Mr. Rotherham in the FTU is far more limited than the treatment which would be available to him in the civil wing of LVMC. John Gatling, M.D., the Director of the FTU spoke of the differences between the two wings of the hospital in his testimony before the District Court. He explained that the primary purpose of treatment within the FTU is "treatment to enable a person to obtain a state of competency to stand trial. ... We do not, as a rule, work on preparing people for placement in the community." Hearing of December 8, 1993, TR-8. Conversely, the focus of treatment in the civil wing of LVMC, as explained by Dr. Gatling, is "the amelioration of the psychiatric problem to the point where the individual can be returned to a less restrictive setting." Id. at TR-9. The conditions in the two wings and the range of treatment options available to patients in the two wings reflects these drastic differences. If the Section 1.5 hearing criteria are met, Mr. Rotherham will remain in the FTU for an indefinite period, up to the maximum sentence of thirty years which could be imposed for the crime with which he is charged. Since the primary purpose of placement in the FTU is restoration of competency, not treatment to rehabilitate, the purpose of Mr. Rotherham's long term confinement in the FTU would be custodial, rather then therapeutic. Dr. Gatling effectively acknowledged this in his testimony of August 3, 1992 by admitting that patients deemed unlikely to attain competence in the foreseeable future are regarded as "long term patients" as opposed to "treatable patients". Transcript of Proceedings at TR-12, State of New Mexico v. Rotherham, 8/3/92. (Hereafter, hearing of 8/92).
In view of the severity of Mr. Rotherham's brain disorder, it is highly unlikely that the limited treatment available to him in the FTU will prove beneficial to him, even if the State were to hold him for the maximum period of thirty years. Experts agree that individuals who suffer from severe psychiatric disorders, such as Mr. Rotherham, require a combination of pharmacologic treatment and psychiatric rehabilitation to achieve stability. However, psychiatric rehabilitation services are not available to Mr. Rotherham in the FTU. There are no opportunities for vocational training, no educational opportunities, and few opportunities to engage in recreational activities. Although the civil wing of the LVMC contains a gymnasium and a swimming pool, patients in the FTU are not allowed to use these facilities. Hearing of December 8, 1993, at TR-13,14.
The conditions of confinement in the FTU are also not conducive to Mr. Rotherham's rehabilitation. The FTU is locked at all times and is surrounded by a 16 foot perimeter fence and two controlled access gates. If a patient were to markedly improve during his time in the FTU, section 1.5 would still not allow that patient to be transferred to a less restrictive setting. Moreover, conditions in the FTU are overcrowded and the staff to patient ratio is low. Finally, Mr. Rotherham is surrounded by patients who, like him, have been determined to be dangerous and, some are likely to be violent and threatening. These are hardly conditions conducive to recovery and rehabilitation. Long-term confinement in the FTU under these circumstances is more closely akin to imprisonment than treatment.
Both Dr. Gatling and Dr. Van Orden, the co-directors of the FTU at the time, acknowledged that Mr. Rotherham is capable, with the provision of psychiatric and psychological supervision, of functioning quite well on the civil side of LVMC. Hearing of August 3. 1992, TR-28; Hearing of December 16, 1993, TR-9. In fact, Dr. Gatling acknowledged that in his best professional judgement, Mr. Rotherham could be maintained in a less restrictive and more therapeutic environment.
"Given the nature of his (Mr. Rotherham's) particular psychiatric condition, if he did not have criminal charges, did not have a forensic commitment, I would probably say that he could be maintained elsewhere. And that being maintained in the civil side, for example, would probably be considered the least drastic means under those circumstances." Hearing of August 3, 1992, TR-23.
However, decisions concerning the treatment of Mr. Rotherham and others who are long-term patients in the FTU may often not reflect the best judgements of medical professionals involved in their treatment. This is because the restrictive policies of the State, as reflected in Section 1.5, vest little authority to the professional judgement of professionals involved in the treatment of persons like Mr. Rotherham. Furthermore, if the Section 1.5 hearing results in the determination that the detention of Mr. Rotherham should be indefinitely continued (for a maximum of thirty years), the exercise of professional judgement will become entirely irrelevant. The only option would be Mr. Rotherham's detention in the FTU for the duration of his confinement, a setting with far more limited opportunities for treatment than the civil side of LVMC.
Without opportunities for treatment and rehabilitation currently available on the civil side, it is highly unlikely that Mr. Rotherham will improve to the point where release from the FTU will be considered within the thirty years he will likely remain in that facility. Furthermore, after thirty years in the FTU, it is unlikely that Mr. Rotherham will possess the necessary insights into his illness nor the adaptive living and social skills to function outside of an institutional setting.
The policies embodied in Section 1.5 serve to restrict and curtail opportunities for treatment and rehabilitation for individuals such as Mr. Rotherham. As such, they do not meet the 14th Amendment substantive due process requirements set forth in Youngberg v. Romeo that individuals confined in institutional settings are legally entitled to the level of care and treatment, in accordance with professional judgement, appropriate to enable them to function free of unnecessary restraints on their liberty.
C. The limitations on treatment provided to Mr. Rotherham in the FTU violates his right to equal protection of the laws.
The State, by denying Mr. Rotherham treatment available to individuals who are civilly committed and individuals who are found not guilty by reason of insanity, has deprived Mr. Rotherham of his constitutional right to equal protection of the laws.
1. Because freedom from unnecessary restraints on liberty is a fundamental right, the Court should apply strict scrutiny in evaluating the statutory scheme under which Mr. Rotherham is detained by the State of New Mexico.
Individuals with severe mental illness are among the most disenfranchised of all American citizens. See Torrey, E.F. et al, Criminalizing the Seriously Mentally Ill, id.; also, Steadman, H.J. and Cocozza, J.J. (Eds.), Mental Illness in America's Prisons, 1993. Despite this, Courts have generally not accorded "suspect class" status to individuals with these disorders. Riggins v.Nevada, 112 S.Ct. 1810 (1992).
However, Courts have applied strict scrutiny analysis in cases which involve the deprivation of fundamental rights. In Foucha v. Louisiana, 112 S.Ct 1780, 501 U.S. (1992), the Supreme Court of the United States struck down a Louisiana statute allowing continued commitment of insanity acquitees even after they were determined to be no longer mentally ill. The Court in Foucha went on to hold that the freedom of institutionalized persons from unnecessary restraints on liberty is a fundamental right and that "the State must have a particularly convincing reason ... for such discrimination against insanity acquitees who are no longer mentally ill." Foucha, id., White J. opinion, 1788.
The fundamental right of institutionalized persons to freedom from unnecessary restraints on liberty pertains not only to the commitment process but also to conditions of confinement and to care and treatment received while subject to any commitment order. Youngberg. v. Romeo, id. Since Mr. Rotherham has been deprived of appropriate treatment during his criminal commitment, the Court should apply a strict scrutiny analysis in evaluating whether Section 1.5 violates his fundamental right to appropriate treatment as protected by the equal protection clause of the 14th Amendment.
2. Section 1.5 is not the least intrusive means for the State to achieve its objectives.
To meet the strict scrutiny test, the State must demonstrate that the distinction in treatment it has created pursuant to section 1.5 is the least intrusive means of achieving its compelling interest. Dunn v. Blumstein, 405 U.S. 330 (1972).
Section 1.5 would appear to serve two principal objectives. The first is protection of the public from individuals who have been charged with a crime, have been determined to be incompetent to stand trial, and have been further determined to be potentially violent and dangerous. The second is the provision of treatment to such individuals.
Amici acknowledge that the State has a legitimate interest in protecting society from persons who are determined to be dangerous. However, both these objectives can be accomplished just as effectively and in a more humane fashion through New Mexico's current civil commitment procedures.
Section 43-1-12 of the Mental Health and Developmental Disabilities Code sets forth procedures for extended commitment of adults in need of treatment for mental illness. These procedures enable the State to authorize long-term commitment, subject to periodic review. Section 43-1-12(C). Clearly, sections 43-1-11 and -12 also enables the State to retain an individual, like Mr. Rotherham, who has been deemed mentally ill and dangerous, in a secure facility for the period necessary for that person to achieve a mental state where he/she would no longer be a threat to society. Hearing of December 8, 1993, TR-16 - TR-18.
Moreover, because the acts which led to Mr. Rotherham's incarceration were very likely the result of a lack of treatment for his severe mental illness, civil commitment would actually serve the State's objective of protecting the public from harm far more effectively than criminal commitment. The limited treatment available to Mr. Rotherham in the FTU is not likely to alleviate his dangerousness or to prepare him for his eventual transition back into the community. See supra text p. 16-18. Since it is likely that Mr. Rotherham will eventually be released back into the community (even if he serves the maximum thirty years in the FTU, he would only be 52 upon release), it is really in the State's best interest to provide him appropriate treatment and rehabilitation to prepare him for this transition and to maximize his opportunity for success upon release.
The State's other principal objective of providing treatment to individuals such as Mr. Rotherham can also be accomplished far more effectively and more humanely through civil commitment. Indeed, the focus of commitment under Sections 43.1-11 and 12 of the Mental Health and Developmental Disabilities Code is on treatment and rehabilitation. The Code specifies that all residential clients receiving mental health services "shall have the right to prompt treatment pursuant to an individualized treatment plan and consistent with the least drastic means principle." Id, Section 43-1-7. The Code also specifies that an individualized treatment plan must be developed for all residential clients which includes "a statement of the least restrictive conditions necessary to achieve the purposes of treatment or habilitation." Id., Section 43-1-9(C)(2).
Conversely, Section 1.5 does not even address the issue of treatment. The focus of Section 1.5 is on detention "in a secure, locked facility." Section 1.5(D)(1). There is no requirement that the State develop an individualized treatment plan for individuals confined to the FTU. There does not even appear to be any requirement that the State provide treatment at all. See supra text on p. 17-19 for a discussion of the limited treatment available for people confined in the FTU. Indeed, on its face, it is difficult to differentiate confinement under Section 1.5 from incarceration in a prison.
Nor can the difference in procedures and treatment standards between criminal and civil commitment in New Mexico be justified by the existence of criminal charges facing one group and not the other. In a case concerning the rights of individuals committed pursuant to an insanity acquittal, the U.S. Supreme Court equated such commitments with civil commitments. "The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual's mental illness and protect him and society from his potential dangerousness." Jones v. United States, 463 U.S. 354, 368, 103 S.Ct. 3043 (1982), italics added.
Ironically, New Mexico affords significantly greater rights to insanity acquittees than it does to those individuals who are not even competent enough to stand trial and obtain an insanity acquittal. Individuals whose cases proceed to trial and who are found not guilty by reason of insanity may be detained only under the State's civil commitment authority. SCRA 1986, Rule 5-602(A)(2). Therefore, unlike those people subjected to criminal commitment under Section 1.5., insanity acquittees are afforded access to the range of treatment and services available to individuals on the civil side of LVMC. There is no justification for the differences in procedural protections and treatment options available to insanity acquittees and individuals found not competent to stand trial.
New Mexico's objectives in enacting Section 1.5, protection of society and treatment of persons who have been charged with crimes but found permanently incompetent to stand trial, can be more effectively and humanely accomplished through existing procedures within the State's civil commitment Code. Consequently, confinement of individuals under Section 1.5 is unnecessary, punitive and violates the constitutional rights of those individuals to equal protection of the laws.
For the reasons stated above, the law in New Mexico governing disposition of cases involving individuals who are not competent to stand trial is unconstitutional.
By Ronald S. Honberg
|National Alliance for the Mentally Ill |
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