Recently in Mental State Category

Community-based Chaos

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James Panero has this article in the City Journal with the above title.  It is subtitled "The de Blasio administration has all the wrong answers on the homeless mentally ill."

For New Yorkers who remember the bad old days, the recent reminders of an era when urban pathologies ruled the streets can be jarring. Back when times were tough, residents of my neighborhood on the Upper West Side passed by abandoned graffiti-covered lots, crunched red-capped crack vials under their feet, and worried about when Larry Hogue, the "Wild Man of 96th Street," would make his next appearance. Now some of this sense of foreboding seems to be coming back.

The Knucklehead Defense

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Judge Barry Silverman, writing the opinion for the U.S. Court of Appeals for the Ninth Circuit in United States v. Rodriguez, No. 14-10122 today:

There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it's punishable by up to five years in prison, as appellant Sergio Rodriguez discovered for himself. Rodriguez, his girlfriend, and their kids were fooling around with a laser pointer one summer evening in the courtyard of their apartment complex - trying to see just how far it could go - and they shined it at overflying helicopters. Rodriguez was convicted of Aiming a Laser Pointer at an Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced to the maximum sentence: five years in prison. Rodriguez does not challenge that conviction.

He also was convicted of another crime stemming from the same conduct - Attempting to Interfere with the Safe Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8). That crime requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life. Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years in prison.
"Even a dog distinguishes between being stumbled over and being kicked," Justice Holmes famously said. 

The role of intent in distinguishing criminal acts from noncriminal accidents and higher-degree offense from lower ones is deeply ingrained in our law.  It may be deeply ingrained in our brains.  Robert Sapolsky reports for the WSJ on a study of scanning people's brains as they read about intentional and unintentional killings.  The study is Treadway, et al., Corticolimbic gating of emotion-driven punishment, Nature Neuroscience 17, 1270-1275 (2014).

Lessard's Legacy

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Alberta Lessard has died.  Lessard was the plaintiff in the landmark case that carries her name that dramatically changed the way civil commitment is handled in the United States.  Before Lessard, people with mental illness were routinely committed to mental hospitals on the basis of informal testimony of a psychiatrist without much opportunity to oppose the proceedings.  It was a system that didn't take seriously the right to be free from forced confinement by the government and the propensity of such a system to allow people committed to the asylums to linger regardless of their improved mental health.  In short, it was a system that needed reform.

But the Lessard decision has a dark side.  It changed the way we think about civil commitment and mental illness.  Before Lessard, commitment was largely premised on the government's parens patriae powers - the need to care for the sick.  In its place, commitment focused almost exclusively on dangerousness and hence the lens in which we view the mentally ill was now focused on seeing them as dangerous people.  As the district court ruefully noted, Lessard's commitment was devoid of the safeguards afforded criminal defendant's and so, the thinking goes, the mentally ill ought to at least have those rights when deprivation of liberty is at stake.  And so the court and subsequently most state legislatures obliged by providing the mentally ill subject to commitment rights enjoyed by criminal defendants including notice, silence, counsel and even a jury.  Unsurprisingly, civil commitment was now wed to criminal procedure and with the requirement of overt acts of harm, adjudication now was about a system responding to scary and dangerous behavior instead of care for the sick.

It is no small wonder then that present day civil commitment includes sex offenders.  They are viewed as dangerous people who lack control over their behavior and need significant management and even confinement.  They are commonly thought of as criminals and even punished as so yet somehow have a mental abnormality that requires treatment.  Sadly, many people with severe mental disorders such as schizophrenia now find themselves routinely in and out of jails and prisons with long-term asylum care almost unheard of except in the obligatory forensic hospital.   The distinction between the sick and the bad has largely vanished.

What has the Lessard decision wrought?  We no longer cabin commitment to people we feel sorry for because they are sick.  Commitment is for the dangerous; those on the cusp of criminality.   To invoke its power requires many of the formalities of the criminal justice system because it is a police power, not an obligation of a virtuous society to care for its citizens.  
There is a regular pattern in constitutional law.  The U.S. Supreme Court announces that the Constitution has magically sprouted a new rule, trumping the power of the people to enact laws through the democratic process in a way that it never did before.  Many people, perhaps most, agree with the rule in its simple form.  Ah, but life is not simple.  With every rule comes pesky little details about its boundaries in the gray zone and the means by which disputes on its application are resolved.  Since no one but the U.S. Supreme Court can authoritatively decide for the whole country what a federal constitution rule actually means, the high court is stuck with the details.

Should people with intellectual disability, formerly called mental retardation, be categorically exempt from capital punishment, regardless of how many or horrible their crimes?  I will assume for the sake of argument that the consensus of the American people would be "yes" for the moderately retarded and below.  I very much doubt that such a consensus would exist for the mildly retarded if people knew what that meant.  If fully informed, I think most people would agree with the 1989 rule of Penry v. Lynaugh that intellectual disability in that range should be considered as a mitigating factor to be weighed in the balance, not a trump card.

Even so, in Atkins v. Virginia in 2002, the Supreme Court extended the blanket prohibition to everyone diagnosable as retarded, but not to "borderline intellectual functioning," the next step up.  The fuzzy distinction between mildly retarded and borderline had been of little consequence while both were mitigating and neither was a trump card, but suddenly the distinction made a great difference.  A wave of death row inmates claiming to be retarded, a few of whom actually were, made Atkins claims.  How do we go about deciding them?  Does every one who makes the claim get a full-blown hearing?

Should a judge who receives an Atkins claim look to the record of a pre-Atkins sentencing and decide on the basis of that record alone, without giving the inmate an opportunity to submit any additional evidence, that he has no claim?  Of course not.  If you read only the question presented as phrased by lawyers for the inmate in Brumfield v. Cain, No. 13-1433, you might think that is what happened in that case.  Not really.

Examining the Medical Model of Crime

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The Heritage Foundation is in my view on the wrong side of sentencing "reform," but remains a valuable, intellectually stimulating and honest organization.  (For example, its Senior Fellow, John Malcolm, acknowledges that increased incarceration accounts for from 25 to 35 percent of the huge decline in crime over the last generation).

Those who are interested and able might wish to attend its Tuesday, April 14 lecture titled, "How Modern Psychology Undermines Morality" by psychiatrist and author Theodore Dalrymple. Its description is:

Modern psychology is one of the most powerful intellectual authorities of our time. Its appeal derives in no small part from its ability to absolve us of responsibility for our misdeeds, vices, and failings. It's never our fault. It's the fault of our subconscious drives, our parents, or our genes. And the solution to our behavioral problems lies not in reforming our character, but in medicines and therapy that can cure the diseases and disorders diagnosed by psychology.

In Admirable Evasions: How Psychology Undermines Morality, the well-known writer, social critic, and psychiatrist Theodore Dalrymple shows how the findings of psychology are superficial and its net effects deleterious. Dalrymple examines the damage psychology has done to our politics by relieving individuals of moral responsibility and diminishing their ability for honest self-reflection. Theodore Dalrymple is the pen name of Anthony Daniels.

Toca Set For Argument Anyway

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Last week we noted that the U.S. Supreme Court case of Toca v. Louisiana, No. 14-6381, was moot because a settlement had been reached back in the state court.

Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.

Update:  A stipulation to dismiss has been filed.  Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal."  Update 2 (2/3): Done.

Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled.  It has to do with the way that state handles murderers' claims that they are intellectually disabled.

That's it for criminal cases on the March calendar.  San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect."  It is set for March 23.

New SCOTUS Cases

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The U.S. Supreme Court has taken up a number of new cases for full briefing and argument.  All the buzz is about the same-sex marriage cases, off-topic for this blog.  There is one actual criminal case, McFadden v. United States, No. 14-378.  The question presented is:

Whether, to convict a defendant of distribution of a controlled substance analogue - a substance with a chemical structure that is "substantially similar" to a schedule I or II drug and has a "substantially similar" effect on the user (or is believed or represented by the defendant to have such a similar effect) - the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Kind of an interesting "mental state" question, but not a big case.

Elonis Podcast, Claremont Edition

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My teleforum on the Elonis case with John Eastman of the Claremont Institute is now available as a podcast.  It's about 10 minutes.
The Supreme Court of Georgia denied a stay of execution to Robert Wayne Holsey, who shot and killed Baldwin County Deputy Sheriff Will Robinson in December 1995.  A press release is here.  Holsey wanted the determination that he is not intellectually disabled reconsidered after Hall v. Florida.

The US Supreme Court subsequently denied a stay 7-2.  Justices Breyer and Sotomayor would have granted the stay.
Kevan Brumfield murdered Police Corporal Betty Smothers in Baton Rouge, Louisiana in 1993.  He went on trial in 1995.  Six years earlier the Supreme Court decided in Penry v. Lynaugh that mental retardation (now called intellectual disability) is a mitigating factor that the jury must be allowed to consider but not a categorical exclusion.  Brumfield's lawyers put on no evidence of retardation, instead arguing other factors as mitigation, and he was sentenced to death.

Seven years after the trial, the Supreme Court decided in Atkins v. Virginia that retardation would be a categorical exclusion after all.  The high court did not apologize for its flip-flop.  On state collateral review, the trial judge denied the petition on the basis of the trial record.

What to do on federal habeas?  The deference standard of 28 U.S.C. §2254(d) allows a federal court to grant relief despite a state court's denial on the merits if the state court's "adjudication of the claim ... (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 

But what if the argument is that the state court's unreasonableness was in not allowing evidence, rather than assessment of evidence?  Can a rule to deal with that issue be crafted without opening the door to federal micromanagement of state collateral review or the wholesale relitigation that the AEDPA reforms were enacted to prevent?

USCA5 Grants Stay to Panetti

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The U.S. Court of Appeals for the Fifth Circuit issued this order in the case of schizophrenic Texas murderer Scott Panetti:

We STAY the execution pending further order of the court to allow us to
fully consider the late arriving and complex legal questions at issue in this
matter.1 An order setting a briefing schedule and oral argument will follow.

1. See 28 U.S.C. § 2251(a)(3); McFarland v. Scott, 512 U.S. 849, 858 (1994).
See also my prior posts here and here.

Nathan Koppel has this article in the WSJ.  Dustin Volz has this article in the National Journal.

Texas CCA Denies Panetti Stay

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Continuing with the Panetti story (see previous post), the Texas Court of Criminal Appeals denied a stay 5-4, finding it had no jurisdiction.  Jim Malewitz has this story in the Texas Tribune, with links to the opinions.

Panetti's previous competency determination was in 2008.  The delay after that point was in litigating Panetti's claim that his "rights" under Indiana v. Edwards had been violated, i.e., that the Texas courts failed to anticipate the Supreme Court's correction of its own error and instead followed the precedents binding on them at the time.  (See comment to the previous post.)  Of course, Edwards didn't create any rights.  It only put a sensible limit on the right created out of whole cloth in Faretta.

So the trial court set an execution date on October 16, 2014, and counsel for Panetti filed their motion nearly a month later, less than 20 days before the execution.  Texas has an anti-last-minute statute limiting jurisdiction in the last 20 days.  No dice, say the majority.

These kinds of time limit laws can be harsh, but the unscrupulous tactics of the defense side has made them necessary.  Filing claims at the last minute that could have been made earlier and then demanding a stay to give the courts time to adjudicate them has long been a key tool in the obstructionist's toolbox.  See, e.g., Gomez v. U.S. District Court (Harris), 503 U.S. 653 (1992).
Continuing with the theme of Bill's post, the State of Texas has scheduled the execution next week of Scott Panetti for the 1995 murder of his wife's parents.  The editorial board of the New York Times can't help themselves.  Even when their position is basically a reasonable one, they still have to make absurd statements in the process.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was "scary" and "trance-like," and called the trial "a judicial farce."
The word "inexplicably" is just plain ignorant.  There is no mystery at all as to why Panetti was allowed to represent himself or who was to blame.  The blame lies squarely with the United States Supreme Court in the 1970s and its propensity at that time to make up rights that are not really in the Constitution.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court said that criminal defendants have a constitutional right to reject counsel and conduct their own defense.  Justice Blackmun noted in dissent, "If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself."  In Panetti's case, make that a crazy fool.

The Faretta rule was long understood to be absolute in most jurisdictions, including Texas and the Fifth Circuit.  As long as the defendant was competent to stand trial, a very minimal standard, he had the constitutional right to represent himself, no matter how much of a farce he made of the trial.  If the trial court denied him that dubious right, the judgment would be reversed on appeal or overturned on habeas corpus.  The Texas trial judge was therefore correct, in the sense of following the precedents of both the state and federal courts, in allowing Panetti to represent himself.  In Indiana v. Edwards, 554 U.S. 164 (2008), we finally got the Court to modify Faretta and recognize that some people are competent to stand trial and assist counsel but not to be their own counsel, see CJLF brief, but 33 years had elapsed and a lot of water had passed under the bridge.

The issue in the courts now, though, is not Panetti's representation at trial but rather whether he is presently too crazy to execute. 

The Zombie Defense

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Park Dietz & Associates, forensic psychology experts, have an email newsletter.  The current issue has an article on Ambien:

The "Ambien Defense" has been getting a lot of press in 2014.  Sometimes called the "Zombie Defense," it's the argument that someone charged with a crime--and the crimes have ranged from DWI to child sexual abuse to murder-- took Ambien (or generic zolpidem) beforehand and had no memory of the crime.
 •  August 19:  A Montana man was sentenced to 100 years for murdering two sisters in their early 20s.  He stabbed one victim over 130 times, including 34 times in the face, and beat, gagged, strangled, and stabbed the other.  A judge called the killings "ritualistic" and "systematic."  The man said he took Ambien before the killings and had no memory of them, but pleaded no contest to avoid a trial.
A few similar examples follow. 

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