Wednesday, March 16, 2016


Not Guilty By Reason of Insanity. I have seen over the years the truth of Alan Dershowitz' statement "anyone who pleads Not Guilty By Reason of Insanity is crazy." Unless one is looking at life imprisonment or decades of prison time, you are better off going to jail, doing your time, and being free of the criminal justice system.  At least you will be done.  But if you are NGRI, we will never let you go.  We will own you forever.  I don't think defense attorneys realise what they are setting up for their clients. They see only the short term of keeping a somewhat pathetic character out of jail, prefering some place where people will be nicer to him.

Side note:  Not Competent to Stand Trial is different.  We have those as well. That's much greater incapacity, and they get let out much more easily.

Side note two: If an NGRI is dropped, the original crime is not reprosecuted.  That would be double jeopardy.

I have never seen an NGRI taken off and the person released with no further obligations to the Department of Corrections. I have never even heard of one, neither in NH nor anywhere else. I'm not claiming it has never happened, but I don't know of one, and neither has the AG's office or the forensic psychiatrists. 

Until this year, when we did it, that is.  By chance, I was covering on the case just as the enormous controversy started to brew. "I can't honestly sign my name to this evaluation and say that I think he has a mental illness," one of our best psychiatrists announced. Off and running.  I was able to follow it with one ear even after I moved to cover elsewhere, because one of my offices was right on the hallway in which many of the discussions occurred.  (A lot of work gets done in corridors in hospitals.)  I got to hear the full story at a presentation yesterday.  There was interesting Q&A about our ethical, legal, and clinical obligations in this unique circumstance.

Obviously, I have to be careful how I write this because of confidentiality. What I am writing is only approximately true. The short version is that the patient was on track for a halfway house. His jail awaiting trial had reported him symptom-free on long-acting injectable medication. Smallish dose. The Secure Psychiatric Unit had seen him symptom-free for almost two years on medication and transferred him to us (that's a very usual amount of time). He was symptom free while on medication at our hospital, which is why we were seeking permission to go the next step to a group home. We drew a blood level of the medication in order that the community would know what level was adequate to treat him.

The blood level came back zero. 

A repeat blood level, and one for the metabolite, taken at a different place in his injection cycle also came back zero.  There was no medication in his system.  Symptom free for six years now, same smallish dose. He probably just didn't absorb that medication, which is unusual but not unheard of.  Usually we switch to another which is absorbed more usually.  But no one saw any need in this case, as his medication was "clearly working just fine." In preparation for moving to the community, the patient needed Medicaid, and the psychiatrist had to certify that he had a mental illness than makes him too sick to work.  The MD said he could not longer assert that. Relooking at the whole history, our MD concluded that he has a psychotic disorder induced by amphetamines, and in the absence of amphetamines, had no illness. The previous evaluators had thought otherwise.

There were formal and informal consultations about all this, as many people had treated him over the two plus years. Plus, a moment of truth was coming up.  NGRI commitments are for five years maximum in NH, and his next hearing was imminent.  This is always a mere formality, because the state no longer has to prove you are dangerous, the burden of proof is on you and your attorney to prove you are safe - which is impossible, because no court psychiatrist is ever going to say a person is safe and will never commit a crime once they have actually done so once.  The risk may be low, but no one will ever say zero. But this time, our psychiatrist would have to testify that he did not see an illness.  Prosecutors and judges hate dueling psychiatrists in the courtroom.  Everyone wants an Easy Button.

I cannot say exactly how the agreement was structured.  Suffice it to say that he is under a different type of accountability and has moved directly to his own apartment, with no further talk of group homes.  He has a job. By all accounts he gets it that a lot of people went to bat for him, and if he commits a crime, with or without amphetamine and psychosis, it will be jail or prison.


Sam L. said...

In the service, when we worked in offices, we often said that so much of our work got done in the hallways.

herfsi said...

you cured him! :)

years ago i worked on the acute psych unit in a university town - a typical weekend was when the "PCP twins" were admitted (they were not related - we just called them the PCP twins b/c they came in at the same time & had been into the same drugs). one was merely temporarily psychotic -- the other, it was their first psychotic break of lifelong mental illness.

interesting it took the legal/medical system so long to figure that out on your guy -- normally one can kind of sort that out within a few days, or a week at the most!

Grim said...

...the burden of proof is on you and your attorney to prove you are safe - which is impossible, because no court psychiatrist is ever going to say a person is safe and will never commit a crime once they have actually done so once.

Impossibility is a fairly serious problem for a legal standard. Ought implies can, as Kant says, and here is something you cannot do -- so who has the right to say that you ought to have to do it?

(Cf. a legal standard that required you to prove that you were free of tuberculosis before you could be released from a hospital. This is non-problematic: we do occasional lab tests. E.g., I had a positive TB test when I came back from China, but have since been tested multiple times without incident. That legal standard would be harsh, but it is at least attainable.)

I'm surprised there hasn't been an effort to challenge the standard itself. If it must be done every five years but never comes out the other way, it would be easy to show that it seems to be effectively impossible. That would seem to be grounds for a legal proceeding of some sort aimed at forcing the state to abandon the standard.

Assistant Village Idiot said...

Grim, it should be an easy class-action suit by an advocacy organisation - until somebody's kid is murdered. Because there would be a string of individuals involved, all of whom did not want to sacrifice their careers for an idea they think is very likely true, it's unlikely to happen.

Sam L. said...

For less grim: 3/18/16

Texan99 said...

I had news recently from a close friend about a young man she knows quite well, but whom I've never met. She's been talking to me about him for some time, as he's a pianist with an international reputation who's taken to her a bit like a mother figure. Last week his wife apparently murdered their two young children and made an unsuccessful attempt to kill herself. Evidently she has been obviously quite troubled for some time--maybe bipolar?--and it seems likely she's headed for NGRI. It's like the Andrea Yates situation, I guess, and I wonder whether someone like her can ever stitch back together a life outside an institution. It will be hard enough for the shattered young father. Her road seems impossible. It makes me reflect on the warning in "Screwtape" about the sort of human who can't credit the divine mercy when it comes to a sin whose loathsomeness he really feels in his bones. In principle it should be no more impossible for this tortured, guilt-ridden mother to repent and move on than for me, but I admit I can't quite believe it.