Legal process on mental illness isn’t yet where it should be

Courts nationally began in the mid-1990s to focus on mental illness and how the judiciary could fine-tune what it does to
better address that issue.

But many within the Hoosier legal community say that the criminal justice system hasn't gone far enough in the past decade,
and both the courts and society are a long way from where they need to be on addressing mental illness.

The inadequacy of the legal process to cope with mental-health issues has come up as recently as March during a statewide
summit by the National Alliance on Mental Illness Indiana, but it's a theme echoed throughout the years by lawmakers trying
to tackle the problem, judges trying to handle it in the trenches, and corrections officials combating the consequences once
people are behind bars.

In ruling on a mental competency case last year, Indiana Court of Appeals Judge Paul Mathias wrote that he believes "our
current criminal justice procedures are inadequate to consider and resolve issues presented by defendants suffering from long-term
or permanent mental illness."

That case involved a man who appealed a Marion Superior judge's denial of his motion to dismiss an attempted murder and
aggravated battery charges against him after a determination that he was incompetent to stand trial. The man had been committed
to the Indiana Department of Mental Health after that finding, and the record later delved into his past diagnosis of receptive
expressive language disorder resulting from a traumatic brain injury as a child. Doctors determined he wouldn't regain
competency anytime soon, civil commitment proceedings began, and Ahmed Habibzadah moved to have the charges dismissed. Marion
Superior Judge Tanya Walton Pratt determined the court didn't have the authority to dismiss those charges and that it
would be premature to do so because of a possibility Habibzadah might someday become competent.

The appellate court unanimously affirmed Judge Pratt's decision, but Judge Mathias wrote separately to expand on the
legal system's handling of defendant mental-health issues.

"I write separately to highlight the issues raised in this case regarding the dismissal of charges against a defendant
who has been civilly committed because he is mentally incompetent to stand trial," the judge wrote. "Our criminal
justice system has a mechanism to deal with temporary incompetence as it pertains to criminal culpability, or scienter, but
fails miserably when faced with the likely long-term or permanent mental illness of a criminal defendant."

The appellate case highlighted an issue confronted regularly by the entire legal system inside and outside the courtroom,
one that has spawned legislative reforms and specialized courts to better address those with mental-health needs.

About two dozen attorneys attended the recent NAMI summit, said Kellie Meyer, criminal justice director. Feedback showed
attendees felt informed about how misaligned the mental-health focus is within the criminal justice system, and that there's
still much to be done to get vulnerable people the help they need.

"We're not just putting criminals out there but are helping people who need those services instead of prison,"
she said.

The U.S. Department of Justice estimates that more than 330,000 of the nation's 2.2 million inmates are mentally ill,
meaning that corrections officials must deal with those issues after the legal system puts individuals behind bars. Nationally,
mental-health courts have been used since the mid '90s. Marion County is believed to have established the first, with
the 1996 creation of the Psychiatric Assertive Identification Referral/Response (PAIR) program that used a pretrial, post-booked
diversion system for mentally ill offenders. Others followed suit with more formal specialized courts, and the National Center
for State Courts reports that there are dozens across the country.

Indiana has about six programs, though some others have more informal programs in place or are being developed. The state
doesn't yet certify those as it does with other problem-solving courts, but that changes July 1 because of a new law approved
by the Indiana General Assembly this year. It allows for the expansion of these problem-solving courts, and allows the state
judiciary to certify courts specializing in mental-health issues in the same way it currently does with drug and re-entry
courts.

Clark Superior Judge Dan Moore operates a mental-health court and hopes to work more with police in the pretrial process
about critical response in committing those with mental-health issues for 24 hours after the initial detention period finishes.

"We need to be able to better develop programs and ID mental-health patients police encounter better than we do now,"
he said. "We're trying to cut some new ground here because sometimes this isn't a criminal issue. Unfortunately,
we're not there yet."

Allen Superior Judge David Avery has been hosting a more informal program that allows for involuntary civil commitments for
mentally ill defendants who aren't able to get the needed help through drug and re-entry courts. The court works with
the mental health-focused PARK Center and every Monday afternoon conducts hearings about ongoing issues, counseling, medication
being taken, or other therapeutic necessities, Judge Avery said. Through the years, some misdemeanor defendants have seen
other courts include the mental-health evaluations as part of a sentence, mandating that they get evaluated by the PARK Center
and then are brought into Judge Avery's court for a status hearing.

"Instead of using jail as a psych ward, we've done this and have been successful in keeping them within the treatment
plans while the offense or sentence hangs over them," the judge said. "A high percentage of these individuals in
our criminal justice system have mental-health issues, and I'm not sure all can be dealt with in mental-health courts
or these specific settings. Some might still need to be incarcerated. But at least we have the option to try something that
might work."

In the past 15 years, the state has also taken significant steps in improving the legal process for defendants with mental-health
concerns. The late Sen. Anita Bowser, D-Michigan City, was a champion for the mentally ill and through the years had been
a part of changes on this front. In recent years, she'd pushed to limit the death penalty in Indiana for those who are
mentally ill. While that didn't materialize before her death in March 2007, her colleagues formed a commission in her
honor to study the issue. Discussions are still ongoing about the definition of "mentally ill" for court purposes.

Despite those efforts and ongoing discussions and changes, those attending the recent summit – and Judge Mathias' point
in the Habibzadah ruling – say that despite the progress we aren't yet where we need to be.

"Our criminal justice system needs an earlier and intervening procedure to determine competency retroactively to the
time of the alleged crime. Perhaps we as a society need to consider the concept of a defendant being unchargeable because
of mental illness under Indiana Code section 35-41-3-6, and not just guilty but mentally ill under Indiana Code section 35-36-2-1,"
the judge wrote. "In either case, the commitment proceedings provided for in Indiana Code 35-36-2-4 would both protect
society and best care for the defendant involved."

Whether such a result can be achieved through the Indiana Supreme Court rulemaking process or the Indiana General Assembly's
legislative process, Judge Mathias said it's "time for the truly, longterm, incompetent criminal defendants to have
an earlier recognition of their illnesses long before a case might get to trial or even appeal.

"Such a procedure convened soon after arrest, rather than years later when stale evidence and dim or non-existent memories
are all that are left over, or never, would best serve society and the defendant," he wrote.