8
Guilty by Reason of Insanity
ON THE THIRD FLOOR OF the Fulton County Jail in Atlanta, Georgia, eight men are sitting around “spider tables,” stainless-steel tables with stools attached. They are all wearing dark-blue scrubs with the words “Fulton County Jail Inmate” stenciled on the back in white letters. Some wear thermal undershirts or raggedy sweatshirts underneath. At the front of the room, a woman sits behind a desk, straight white hair pulled back with a single barrette. “Why are you here?” the woman asks.
“To be made competent,” answers one man emphatically.
Another raises his hand. “How do I make myself competent?”
By studying hard, the woman answers.
“Can we learn to be a judge?” he continues. Without waiting for an answer, he launches into a long, rambling digression about judgment.
All have a pending criminal case (or cases), and all have been found incompetent to stand trial because of a mental illness, a developmental disability, or some combination of the two. They are not here to be made sane, or “better.” As the man correctly responded, they are here to be made competent—that is, sane enough to appear before a judge and get a fair hearing.
A CRIMINAL CASE CANNOT PROCEED if the defendant is deemed incompetent. It’s one of only two points in the criminal justice system where, legally speaking, the defendant’s sanity matters. The other point in the criminal justice system when sanity is relevant is at the time the crime was (allegedly) committed. This is, of course, the basis for a plea of not guilty by reason of insanity (NGRI). But where questions about competency to stand trial are far more common—and indeed have widespread ramifications for the entire criminal justice system—NGRI has a reputation that far exceeds reality. It is one of the oldest and perhaps the most misunderstood concepts in the world of mental illness and criminal justice. Popular opinion holds that pleading NGRI is extremely common and that it is frequently used by sane but dishonest people as a way to avoid prison time. (Indeed, Randle McMurphy, the hero of One Flew Over the Cuckoo’s Nest, had feigned insanity, thinking that the hospital would be preferable to prison time.) In reality, though, even without precise statistics, it’s clear that both requests for a finding of NGRI and the success of those requests are quite rare.
Best estimates suggest that attorneys ask for the insanity defense in somewhere between 0.1 and 0.5 percent of felony cases. And most of the relevant studies were done using data from the 1970s to the mid-1980s, when the insanity plea was far more common than it is today. Of those 0.1 to 0.5 percent of felony cases, somewhere between 10 percent and 60 percent are thought to be successful; another study estimated that the plea succeeds in about a quarter of the cases in which it is raised.1
If he is found not guilty by reason of insanity, the defendant, like the fictional Randle McMurphy, will be committed to a psychiatric facility rather than to prison. In another indication of how rarely it succeeds, statistics from 1978—when, again, NGRI was far more common than it is today—show that NGRI accounted for only 8 percent of all admissions to mental hospitals that year. That translates to about thirty acquittals per state, annually.
Although psychiatric treatment might sound preferable to prison time, the truth is that it is often more involved. To be released from the hospital, even temporarily, the patient has to prove to a judge that he is not a danger to himself or others, either currently or “in the reasonable future.”2 Depending on the outcome of the hearings, a person who is found not guilty by reason of insanity could spend far longer in the hospital than he would have spent in prison, one reason that defense attorneys are hesitant to ask for the plea. Another reason to believe the plea is rarely used to pull a fast one on the jury is that few successful insanity acquittals are the result of a jury trial. Instead, they come from what amounts to a plea bargain, where the prosecutor agrees that the defendant is not sane enough to be tried and punished, and lets him plead NGRI instead.3
Whether somebody can be found not guilty by reason of insanity hinges on whether he was sane enough to understand what he was doing when he committed the crime. Although there are accounts of some form of insanity acquittal going back to at least the 1500s, our modern interpretations of it date to a case from the nineteenth century. In 1843 a man named Daniel M’Naghten went to London with plans to assassinate the prime minister, Robert Peel. Mistaking Peel’s secretary, Edward Drummond, for the prime minister, M’Naghten shot and killed him instead. A medical witness in the murder case concluded that both what M’Naghten had done and his medical history “[l]eaves not the remotest doubt on my mind of the presence of insanity sufficient to deprive the prisoner of all self-control. I consider the act [of the assassination] to have been committed whilst under a delusion.” The judge, for his part, told the jury that “If [M’Naghten] was not sensible at the time he committed that act, that it was a violation of the law of God or of man, undoubtedly he was not responsible for that act, or liable to any punishment whatever flowing from that act.”4
M’Naghten was found not guilty by reason of insanity, a verdict that led to an intense outcry from both the general public and from Queen Victoria, who had herself been attacked by a man later found to be not guilty for the same reason. In response, the House of Lords asked the judges to clarify the circumstances under which somebody could be found not guilty by reason of insanity; their answer has become the basis for what are called the M’Naghten rules, on which modern definitions have been based: “[E]very man is to be presumed to be sane.… [T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”5
Richard Bonnie, a law professor at the University of Virginia who specializes in competency issues, says that for people in favor of the NGRI plea, “[I]t seems fundamentally wrong and inhumane to punish people and condemn them and, certainly, to execute them, if they were truly alienated from the moral reality of their conduct.” At the same time, he acknowledges that in many cases, the magnitude of the crimes, set against the image of somebody who looks so outwardly “normal,” makes the plea tough to justify: “These look like people who were capable of rational reflection on their behavior, yet do terrible things,” he told me.
Although the insanity defense is rarely invoked, the debate about it exposes in many ways the central tension between the goals of our criminal justice system and the fraught question of sanity. We may agree, in the abstract, that it is unfair to convict somebody who didn’t know what he was doing. On the other hand, we are deeply skeptical of people who attribute their behavior to madness (or have it attributed on their behalf), and we may even instinctively abhor violent or deviant behavior that is caused by psychosis.
As the M’Naghten case showed, a verdict in which a defendant is deemed insane and, thus, not guilty is almost always controversial. Bonnie says debates about NGRI force us to consider not just the question of punishing people with mental illness but also of punishment generally: “It puts before people the purposes of punishment, [asking] ‘Why do we punish?’ They talk about [NGRI] because by asking about the exception, we reaffirm the rule… by asking that, people then are really affirming the legitimacy of punishment.”
In recent decades, however, the idea that a person who is insane should not be responsible for their crimes has been increasingly challenged, both by the US public and by state legislatures. This shift has been shaped in part by a number of sensational cases in which NGRI was requested by the defense: Jeffrey Dahmer, who was charged with killing fifteen people; Lorena Bobbitt, who cut off her husband’s penis; and Andrea Yates, who drowned her children in the bathtub. (Dahmer was ultimately convicted, Bobbitt was acquitted, and Yates was convicted but later acquitted on retrial.)
However, the case that had perhaps the most effect on the laws around NGRI was the attempted assassination of Ronald Reagan by John W. Hinckley, Jr. It was March 30, 1981, when Hinckley, standing in a scrum of reporters and photographers on the sidewalk outside the Washington Hilton, shot President Reagan in the chest. He also shot the president’s press secretary, James Brady; a Secret Service agent; and a police officer. Hinckley, then twenty-five, was the baby-faced drifter son of a wealthy Colorado oilman; he’d hoped the assassination would impress the actress Jodie Foster.
Just over a year after the shootings, a Washington jury found Hinckley not guilty by reason of insanity, and he was committed to St. Elizabeth’s Hospital, the first federally run psychiatric hospital in the country. The response to the verdict was swift and angry: “There must be an end to the doctrine that allows so many persons to commit crimes of violence, to use confusing procedures to their own advantage, and then have the door opened for them to return to the society they victimized,” Attorney General William French Smith said in a statement at the time. A Republican member of the House told the New York Times, “People are irate today. I think the country was stunned.”6
In the years leading up to the assassination attempt, there had already been movement in a number of states to modify their NGRI statutes. In the years after, more than half passed laws doing so. Some states have added a question of mens rea—that is, the intent of wrongdoing—to their definitions. Many states also officially shifted the burden of proof onto the defendant, although Bonnie says that this has unofficially always been the case. (Four states—Kansas, Idaho, Montana, and Utah—have also abolished the insanity defense altogether.) More recently, a number of states have added a “guilty but mentally ill” (GBMI) verdict, which experts describe as being about as logical as declaring a defendant guilty but with high blood pressure—in other words, meaningless. According to law professor Christopher Slobogin, “The GBMI verdict, put simply, is a hoax.… [T]he GBMI verdict has nothing to do with assessing culpability, which should be in the central issue in a criminal prosecution involving a person with alleged mental problems.”7
Conceived as a way to offer juries a third option besides guilty or not guilty, the GBMI verdict was also meant to guarantee defendants access to better mental health treatment while incarcerated. In practice, it has neither reduced the number of NGRI acquittals nor substantively increased access to care.8
Hinckley spent thirty-five years at St. Elizabeth’s; he was released quite recently, at age sixty-one, to go live with his elderly mother in Williamsburg, Virginia. His release generated only mild concern, mostly among residents of that city.
In 2012, after shooting and killing twelve people and injuring seventy others in a movie theater in Colorado, James Holmes pled not guilty by reason of insanity. He was convicted. For the murders, he was given the otherworldly punishment of twelve life sentences without the possibility of parole. The sentence was calculated as one lifetime behind bars for each person he killed. In addition, he was sentenced to another 3,318 years for the seventy attempted murders and for filling his apartment with explosives.9 Asked later whether she thought Holmes was mentally ill when he committed the massacre, the mother of one victim answered: “I don’t care if he’s mentally ill or not, that’s irrelevant to me. He wanted to kill people, he managed to do it, and he should be held accountable.”10
IN STARK CONTRAST TO NGRI, the question of whether a defendant is competent to stand trial has had a tremendous impact on both the mental health care system and the criminal justice system. A criminal case cannot proceed—either toward a trial or a plea bargain—if the defendant is found incompetent, and the epidemic of mental illness in the criminal justice system has presented a singular problem with respect to court proceedings. Across the country, thousands of people are stuck in jails simply because they are too sick for their cases to proceed.
Like NGRI, the discussion about competency to stand trial—and the notion that a person who is insane should neither be judged nor punished—has a long history. As far back as the mid-1600s, English courts differentiated between defendants who refused to answer questions out of stubbornness versus those who refused “by visitation of God.” In his commentaries, which, when written a century later, became the basis of English and American common law, William Blackstone wrote that competency was critical. A defendant who was insane should not “be arraigned because he is not able to plead to [the charge] with that advice and caution that he ought.” He shouldn’t go to trial, either, because “how can he make his defense?”11 In other words, it’s not fair to charge an insane person with a crime because he can’t make a rational decision about whether to plead guilty or not guilty. Nor is it fair for him to be tried because he can’t defend himself. An English court reinforced that idea when, in the late 1700s, a man named John Frith—who believed that supernatural agents whispered in his ear and that when the moon was in the south, he could not sleep near heavy buildings—was brought to court in London for throwing a stone at the King’s carriage.12 The court told the jury that Frith should not be brought to trial in this condition: “[N]o man shall be called upon to make his defence, at a time when his mind is in that situation, as not to appear capable of so doing; for, however guilty he may be, the enquiring into his guilt, must be postponed to that season, when, by collecting together his intellects, and having them entire; he shall be able so to model his defence, as to ward off the punishment of the law.”13
Throughout the nineteenth and early twentieth centuries, US states followed common law. Then in 1960 the US Supreme Court heard a case, Dusky v. United States, in which the plaintiff argued that he’d been too sick with schizophrenia at the time of his trial to fully understand what was going on. Therefore, he had been unfairly sentenced to forty-five years in prison for his part in kidnapping and raping a young girl. The Court agreed and laid out a new, two-part requirement for determining a defendant’s competency. The judge must not only make sure “the defendant [is] oriented to time and place and [has] some recollections of events” but also consider “whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as a factual understanding of the proceedings against him.”14
The defendant has to understand why he’s being charged—what crime is he being accused of committing?—and he needs to be able to understand the potential consequences of those charges—what kind of penalty could he face if he’s found guilty? And he has to understand those concepts in a rational way. So, for example, he has to understand that he faces ten years in prison and that he faces those ten years because he stole a car and not because the CIA or God told the judge to send him to prison for ten years. The defendant must also have at least a rudimentary understanding of the workings of the justice system: Who is the judge? What is her job? What does a plea bargain mean?
The rest of the guidelines are often overlooked, although they are at least as important as the first. The defendant has to be sane enough to be able—and willing—to communicate with his attorney in such a way as to aid in his own defense. A law professor in New Orleans who specializes in competency issues told me about a client she had who met the first requirements easily: he understood the charges against him and the consequences. He had sufficient understanding of the criminal justice system. But his schizophrenia made him so paranoid that he was convinced the prosecutors could hear everything he told his defense attorneys. Sure, he was prepared to help his attorneys with his case, but he would talk to them only in a “code,” a code that only he could understand. What’s confusing about this is that narrow definitions of competency mean that a person could be very symptomatic and very sick yet still be found competent to stand trial. “There are a lot of people who would never get tried if we waited for them to get sane,” one forensic psychiatrist told me. “The question to consider is not if he’s sane, but if he can get a fair trial.”
Since Dusky, subsequent cases have sought to come up with more-subtle interpretations that would accommodate the idea that different circumstances call for differing levels of competency. The idea is that a defendant facing the death penalty ought to be more competent than somebody who is facing only a low-level misdemeanor charge such as disturbing the peace or disorderly conduct. Note that we do this in other civil contexts as well: a person may be judged competent to make financial decisions but not medical ones.
It’s also worth noting that the law does not differentiate between somebody who has a mental illness and somebody who is cognitively impaired for other reasons—because of a developmental disability or a traumatic brain injury, for example. This is important because, as we will see shortly, the reason for the impairment can affect whether or not it can be reversed. A person who is incompetent because he’s psychotic from untreated schizophrenia may be “restored to competency” with medication and therapy. That is probably not the case for somebody who was born with developmental disabilities and who has never been able to function above the level of a five-year-old. Nonetheless, people with developmental disabilities are frequently referred for restoration.
ANY COURT OFFICIAL—A DEFENSE ATTORNEY, a judge, even a prosecutor—can refer a defendant for a hearing to determine whether he or she is competent to stand trial. In practice, though, it’s almost always the defense attorney who does it. After the defendant is referred for an evaluation, one or more mental health professionals perform an exam to see how sane the defendant is. One common screening exam includes questions like “Where does the judge sit?” and “What is your attorney’s name?” Others test for less tangible things such as the ability to assist one’s attorney or rational understanding of charges. Tests often include components designed to ensure that the person isn’t trying to fake the symptoms of mental illness.
Depending on the jurisdiction, the exam may take place at the jail, at the courthouse, or at a hospital. Sometimes, a person may be sent to a hospital for a longer period to give doctors a chance to evaluate him more closely over time. Wherever the exam happens, the psychiatrist or psychologist then comes up with a determination that is presented to the judge.
For defense attorneys there is sometimes a quandary about whether it is better to advise a client to simply accept a plea and be done with the case or to ask for the exam, even when the client would clearly benefit from treatment. That’s especially true for clients who are facing low-level charges with minimal potential penalties. The evaluation and treatment often take so long that the person ends up spending more time in the hospital than he would spend in jail were he to simply accept a plea bargain. It’s one more example of how the system hurts people with mental illness: the defendant will likely receive minimal treatment in the jail and little or no treatment once released.
However, the evaluation is not always simple. I’ve heard attorneys complain about the quality of the exams or that the examiner failed to consider the client’s psychiatric history. Clients with means sometimes hire outside experts to do their own exams, but there is also no guarantee the court will agree with the outside expert. For example, a New York City man accused of the 2015 murder of his father, a hedge fund manager, hired an outside psychologist who found him incompetent, but based on the reports of the state’s own examiners, the judge still found him competent to proceed. As of this writing, he has been at Rikers for two and a half years. His attorney still says his client has a mental illness; however, the defendant has refused to undergo another evaluation.
Nationwide, between fifty thousand and sixty thousand criminal defendants are evaluated each year for competency. Between 20 percent and 25 percent are found to be incompetent to stand trial. Like the men I saw in the Fulton County Jail, those people are referred for treatment designed to make them sane enough to stand trial, a process known as “restoration to competency.”15 Michael Perlin, a law professor emeritus at New York Law School who specializes in mental disability law, says the practice is relatively new. Until 1972, there were almost no attempts to restore defendants to competency. They were sent to a hospital but often ended up simply staying there indefinitely. The tongue-in-cheek story was that more defendants who were incompetent to stand trial left the Massachusetts state hospital in Bridgewater dead than by all other means put together.
There are usually two components to competency restoration today: the administration of psychotropic medication to control the defendant’s symptoms and participation in what is often called legal education, classes that emphasize intensive repetition of basic facts about the court system—including what the difference is between a misdemeanor and a felony or what a jury does.
It is the kind of rote memorization that a reasonably intelligent four-year-old could be taught to parrot back, whether or not she actually understood the concepts behind it. It’s not unlike the way one might cram for the written portion of the driver’s license test, committing to memory just long enough to pass the exam such facts as how many feet away from a fire hydrant to park or how long to stop at a stop sign.
Perlin told me about a competency-restoration course he observed in Oklahoma some years ago. The class was held in an old schoolroom, where the prisoners—adult men—sat at elementary-school desks while the hospital instructor drilled them over and over on the role of various courtroom figures, including the judge, the prosecutor, and the defense attorney. The instructor held up a diagram of a courtroom and did what Perlin described as a call and response: “Who sits here? The judge. Who? The judge.” Practice questions from a curriculum used in Virginia include things such as “tell me what the defense attorney’s job is.” Or “tell me how you should behave in court during your trial.”16 Many programs use movies such as My Cousin Vinny or television courtroom dramas such as Law & Order to help the patients understand how the justice system works.
One of the more absurd, and expensive, examples comes from Florida, which spends about $53,000 per defendant, some $50 million per year, to keep nonviolent felony defendants in state hospitals while they are restored to competency. As in other states, patients there participate in mock trials and watch Law & Order reruns.17
Less typically, Florida developed a mock game show that’s supposed to introduce patients to different parts of the system. The production quality is 1980s-era open-access cable television: the set includes a large cardboard triangle outlined in small white Christmas lights, an amateurish approximation of the Wheel of Fortune, or the wall of screens on Jeopardy. There’s even a cheesy game-show–style soundtrack. The “host” appears on the set dressed in a gray suit. “Welcome to Trial and Error, the game show that helps you achieve competency to proceed,” he says, in a deadpan imitation of Alex Trebek or Bob Barker. “Today our categories are: courtroom personnel, plea options, witnesses, appropriate courtroom behavior, legal status and rights. Let’s get right to it.”18 Another “episode” features a large Wheel of Fortune–style spinner. When the “contestant” correctly tells the host the penalty for a first-degree felony, he congratulates her heartily: “Congratulations, Miss Faust, you are now considered competent to return to court and face your charges.” In reality, a mental health professional would have to administer a competency exam; this is not even remotely how a defendant would be found competent.
“The way we spend money now is ludicrous,” said Steve Leifman, a judge from Miami-Dade County who has spent fifteen years working to reform the way mental illness is handled in the criminal justice system. “Our emphasis should be on recovery and community reintegration rather than memorizing facts about the justice system.”19 As Leifman points out, states spend enormous sums of money in what is effectively a charade to treat people’s mental illnesses. Besides being disingenuous, it is a missed opportunity: here is a literally captive audience, potentially motivated to engage in treatment, and instead we have them watching Law & Order reruns so that they can correctly identify the judge in a diagram of a courtroom. (Certainly, many people, sane or not and facing charges or not, could use a refresher course on how the criminal justice system works. As mental health care, however, this seems like a questionable investment.)
Restoration typically takes place in state psychiatric hospitals, where a certain number of beds are reserved for forensic patients, a category that includes people in need of exams to evaluate their competency and those in need of restoration treatment. Because of this, the whole system of competency evaluation and restoration becomes part of the complex interplay between the public mental health care system and the criminal justice system. People who need to be evaluated for competency or restored to competency fill many of the available forensic beds. The average length of stay for competency-related issues is six months. Often it’s longer. The 1972 US Supreme Court case Jackson v. Indiana ruled that defendants can be held for only a “reasonable period of time” but left it up to the individual states to define what was reasonable. Twenty states define reasonable as a year or less because research has shown that most people will be restored in six months to a year and that trying to treat beyond that is pointless. Others use criteria such as the maximum sentence for the alleged offense; some don’t specify how long a person can be held. In some states, including New York, if a defendant in a misdemeanor case is found incompetent to stand trial, the case is automatically dismissed. On the one hand, this is a good thing because it gets the person out of the criminal justice system and saves both time and money, but it also means that the person misses out on any mental health care that might have been provided as part of a restoration-to-competency program.
Lengthy hospital stays for competency restoration mean that turnover in the state hospitals is very slow. With very few spots to begin with, it creates a shortage of hospital beds that in turn creates a backlog of people sitting in jail waiting for a hospital bed. For example, every month of 2015 saw nearly four hundred prisoners in California jails waiting for a place in a competency-restoration program. In Los Angeles County, the average wait time was more than two months.20 (The county has recently begun experimenting with alternative models, including an in-house program in the LA County Jail.) For the people who are waiting, their cases are put on hold until they have been restored to competency or are found to be “unrestorable,” and then the case could be dismissed, or they could be civilly committed to a hospital.
The ACLU filed a lawsuit in 2015 on behalf of eleven Pennsylvania prisoners who said they had been held in jail for months, and in some cases years, while they waited to be sent to a hospital for restoration. A quick look at Pennsylvania’s mental health services makes clear why there is a capacity problem. Pennsylvania has two state hospitals with a total of just under 200 forensic beds. At any given time, there are an additional 220 people waiting for those beds.21 A settlement reached in 2016 promised to create 120 additional treatment slots and to evaluate every person on the waiting list or involved in the forensic system to make sure that he or she is getting an appropriate level of care.22
Also in 2015, a federal judge ordered Washington State to follow state law, which requires that every prisoner sent for an exam to evaluate competency to stand trial receive one within seven days.23 The state is fined $500 per day for any prisoner who waits longer than seven days for in-hospital services and $1,000 per day for delays longer than fourteen days. So far, according to the ACLU of Washington, which has been litigating the issue, the state has paid around $17 million in such fines and is still not in compliance. Meanwhile, counties are paying to house all of these people in jail who are awaiting hospital beds. Over a six-month period, a report by the state behavioral health agency showed, jails spent $1.7 million to house just those defendants who were waiting to be evaluated and another $1.4 million to house those waiting to be restored to competency.24 There have also been lawsuits over wait times in other states, including Oregon and Arkansas, and cases are pending in California, Utah, and elsewhere.
Sometimes the delay is so long that it effectively cancels the case. In Oklahoma I heard about a defendant who had sat in jail for so long waiting to go to the hospital that he was finally released without ever getting either treated or tried: he ended up serving what would have been the maximum sentence for his crime without ever making it to the hospital, let alone to trial. When I tracked down his attorney to get more details on the story, he told me that he had so many clients who fit that description that he didn’t know which one I meant.
For defendants whose cases don’t time out in this way, though, court delays sometimes create a new set of problems. Once a person is found competent, he is sent back to jail to wait for his case to continue. But that can take awhile because court cases proceed slowly: there are often endless hearings and scheduling complications. Meanwhile, because jails are what is known as psychotogenic—that is, psychosis-inducing—environments and mental health care there, as we have seen, is often minimal, people sometimes decompensate (deteriorate psychologically) while waiting for the case to get resolved. If it gets so bad that the defendant becomes incompetent to stand trial again, he has to be sent back to the hospital for another round of evaluation and treatment, and the cycle begins again, sometimes dragging on for years.
AS A WAY TO MANAGE both the extraordinary wait times and the excessive costs, jurisdictions have begun experimenting with alternatives to the more traditional hospital setups: inpatient programs inside of jails and outpatient programs in communities. Started in 2011, the program I visited in the Fulton County Jail in Atlanta is an example of the former, though unlike many other jail-based programs, this one is not run by an outside contractor. Instead, it is a collaboration with the Psychiatry Department at Emory University’s medical school, which means the program is overseen by a psychiatry professor there, and the clinicians, both the treating psychiatrists and the ones who do the competency testing, are part of the school’s forensic psychiatry program.
In charge of the program is Victoria Roberts, a short woman with frosted blond hair who spent most of her career working at Georgia Regional, the state hospital in Atlanta. She was getting ready to retire when Emory’s head of psychiatry invited her to take over this new project. It was a logical transition because of the overlap between the hospital population and the jail one. Often, she told me, she’ll be walking through the intake area of the jail when she hears new arrivals calling out to her “Georgia Regional! Georgia Regional!” “It’s the cycle,” she said. “We’re connected from in here, over there, forever. We recycle.” That understanding is incentive for her to use the time she has with these men to do as much as possible, so her program offers more classes than many. In addition to things like legal education, the men in her program are offered classes in current events and literacy: “That’s what we’re really trying to do, interrupt this cycle. We try to do as much as we can while they’re here, so when they do get out, [they won’t come back].”
Some critics see treatment in jail for the purpose of restoration to competency as a contradiction in terms, just like treatment on a jail mental health unit. “It’s virtually impossible to do meaningful psychotherapy in a jail context,” said Michael Perlin, the mental disability law expert. But Roberts unabashedly uses the fact that it’s a jail to her advantage: “We do a lot of things here that you can’t do in a hospital. We have more control because it’s a jail. We can do a little more coercion to come to groups. In the hospital, you can’t cross a certain line because it’s not ethical. In jail, they’re supposed to do what we say. We try to do it in a way that supports independence. We actually will say ‘If you don’t go to groups, you’re not going to get better [enough] for Ms. Roberts to work on your case to get to trial.’”
This is part of what worries critics of in-jail restoration programs. In Washington State the ACLU affiliate filed a lawsuit to block prisoners with mental illness in jails around the state from being sent to two alternative restoration programs, saying in part that mental health care should be provided in a hospital environment—where patients wear street clothes, can come in and out of their rooms at will, and have the full range of therapeutic programming.
Medically, the main difference between this and the restoration program in the state hospital is that the jail program does not medicate over objection. Except in certain emergency circumstances, forcing somebody to take medication when he doesn’t want to requires a hearing before a judge, something with which few jails are willing to deal. Instead, a patient who refuses medication will usually be transferred to the hospital, which is more equipped to handle such cases. (Some even have courtrooms inside the hospital to accommodate such hearings.) A 2003 Supreme Court ruling further complicated matters: it is now under extremely limited circumstances that a person may be forcibly medicated only to restore him to competency.
Days on the Fulton County Unit are heavily programmed. In addition to the various classes, there’s substance use counseling, and each participant is assigned a counselor whom he sees once or twice a week; it’s supposed to be more for legal issues than for psychiatric ones, “but of course things come out,” Roberts said. They do mock trials once a month; a talent show, which she says promotes long-term thinking and planning skills; and celebrate holidays, from St. Patrick’s Day to Christmas, designed in part to keep people oriented to the date and time of year. (Even for people without cognitive issues, jails are disorienting places: there’s little access to daylight, lights may stay on all night, and the hours for things like meals and medication often have little to do with the chronological time.)
The walls of the unit are covered with laminated posters designed to reinforce what the participants are learning: “What does it take to be competent to stand trial?” (know that you are being charged with a crime, understand what your charges are, know how the court system works, etc.). Another lists the characters in a courtroom: the judge (the “Boss” of the courtroom), witnesses, the jury. Other walls have inspirational posters with messages like “Self-Control Is Knowing You Can but Deciding You Won’t” and “If You Tell the Truth, You Don’t Have to Remember What You Said.”
Here, too, they use Law & Order and games: Roberts says it’s useful to “immerse [the patients] in the language,” for the same concepts play out in the show as in the real-life courtroom. After a break, another teacher, Ms. Brown, a woman in a blue knit beret and black leather jacket, organizes a game of bingo to review material from legal ed. It was a stark reminder of the difficulty, or maybe futility, of what they are trying to do. “What does it take to be competent?” Brown asks.
A man raises his hand. “I’m not,” he volunteers.
Brown passes out laminated bingo cards and small squares of construction paper in lieu of chips and announces the beginning of the game. “Today we are reviewing some of the basic terms,” she says. A white man with greasy hair and a patchy beard asks, “Is this game called limbo, not bingo?” Another man, the one who asked earlier about how to get competent, raises his hand and riffs off his classmate’s question: “How do you arbitrate legal limbo?” Brown ignores them both and reads a clue: “A lawyer against you. He or she is paid to prosecute you.”
“District attorney,” a white man with a neat haircut and thick beard calls out.
“You admit what you were accused of doing.”
“Guilty,” somebody calls out.
Correct answers win the men candy, a choice of a Jolly Rancher or a Tootsie Roll, selected out of a plastic bag on Brown’s desk. As I watched these men in class that day, the magnitude of the challenge really hit home for me. A few of them were able to engage fully and appropriately, answering questions and having relevant discussions. (Two of those had just been found competent.) Others were able to participate sporadically but had trouble sustaining interest and attention. And then there were those who were very much in their own worlds: one man sucked his thumb and rocked back and forth through most of the class. Another stared fiercely into space and periodically jumped up to punch or kick at invisible foes. Hopefully, all of them will eventually reach the level of the first group.
But here is the sad part: for many of these men, this may be the best mental health care they get. If Roberts succeeds and her patients are restored to competency, they will either be sent to prison, where treatment is likely to be as minimal as it is in other parts of the Fulton County Jail, or they will be released back to the streets, where the prospects are at least as bleak.