Developments in Mental Health Law is a free publication of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, School of Law. It is published electronically six times per year through funding provided by the Virginia Department of Behavioral Health and Developmental Services. The following was excerpted from Volume 30, Issue 5, edited by Jane D. Hickey.
Below are brief summaries of recently decided or currently pending cases in mental health law.
US Supreme Court Orders California to Reduce Prison Population for Failure to Provide Constitutionally Adequate Treatment for Inmates with Serious Mental Illness
In a 5-4 decision written by Justice Kennedy, the United States Supreme Court upheld the decision of a three-judge panel entered under the Prison Litigation Reform Act of 1995 (“PLRA”) ordering California to reduce its prison population by 137.5% of its original design capacity, or by 46,000 prisoners, within two years in order to address severe and unconstitutional conditions related to the delivery of mental health and medical care to California’s 156,000 inmates. Brown, Governor of California, et al. v. Plata, et al., No. 09-1233, decided May 23, 2011. Slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf
This decision is the result of two consolidated federal class action suits challenging the mental health and medical conditions in California’s prisons. The first, Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Calf. 1995), was filed in 1990 alleging that deplorable mental health care constituted cruel and unusual punishment under the Eighth Amendment. After a 39-day trial, the court found the prisons severely and chronically understaffed with no method for ensuring competence of staff. The prisons failed to implement necessary suicide precautions due to severe understaffing and mentally ill inmates languished for months and years without access to care, suffering severe hallucinations and decompensating to catatonic states. After 12 years, a Special Master appointed to oversee remedial efforts reported that after slow improvement, the status of mental health care was again deteriorating. A rise in the prison population had led to greater demand for care, and existing program space and staffing levels were inadequate to keep pace. In 2006, at the time of trial before the three-judge panel, the suicide rate was approaching one per week with the suicide rate nearly 80% higher than the national average for prison populations. Suicidal inmates were held for prolonged periods in telephone booth-size cages without toilets. Slip Opn. at 11. According to the Special Master, 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” Slip Opn. at 12. In 2007, the rate had risen to 82% and by 2010 there had been no improvement.
A second class action, Plata v. Brown, was filed in 2001, in which California conceded that deficiencies in prison medical care violated the Eighth Amendment. When the State had not complied with the remedial injunction issued, the Court appointed a Receiver to oversee the remedial efforts. Three years later, the Receiver described equally deplorable continuing deficiencies in medical care. In one prison, up to 50 sick inmates were held together in one 12 foot x 20 foot cage up to five hours awaiting treatment. The Coleman and Plata plaintiffs thereupon requested their respective district courts to convene a three-judge panel to order reductions in the prison population.
The Supreme Court held that if a prison deprives inmates of their basic needs for sustenance, including adequate mental health and medical care, courts have a responsibility to remedy the Eighth Amendment violations. Under the PLRA, only a three-judge panel may enter an order imposing a population limit and only after a district court has entered an order for less intrusive relief that has failed after the state has been given reasonable time for compliance. Before doing so, that court must also first consider a range of options, and then find by clear and convincing evidence that crowding is theprimary cause of the violations, no other relief will remedy the situation and the relief is narrowly drawn and the least intrusive means to correct the violations. The court must also consider any adverse impact such a population limit will have on public safety and the operation of the criminal justice system. The Supreme Court thus held that the three judge-panel had properly heard evidence of then-current conditions and that no other relief short of imposing a population limit would remedy the situation. California indicates that it is proceeding to implement measures to reduce its prison population, but with the State’s severe budget crisis, it remains to be seen how effective its efforts will be.
Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito also filed a dissenting opinion in which Chief Justice Roberts joined.
Ninth Circuit Finds NGRI Acquittee May Appeal Rulings Made in Criminal Proceeding
Unlike the Arkansas Supreme Court in Hughes v. State of Arkansas, 2011 Ark. 147; 2011 Ark. LEXIS 134 (April 7, 2011) and reported in Issue 4 of Developments in Mental Health Law, the Ninth Circuit Court of Appeals found that federal courts have statutory authority to hear the appeal of a defendant in a criminal case who was found not guilty by reason of insanity. United States v. Vela, 624 F.2d 1148 (9th Cir. 2010). In the Ninth Circuit case, a defendant found NGRI attempted to appeal the trial court’s ruling refusing to dismiss the indictment against him and another ruling prohibiting him from presenting a diminished capacity defense. The defendant had been charged with assault of a federal officer, having stabbed a customs and border protection chief in the chest with a knife. He argued that the indictment should have been dismissed for failure to contain an element of specific intent and the verdict reversed for the trial court’s failure to instruct the jury on a defense of diminished capacity. The defendant also raised the insanity defense and presented expert testimony in support of that defense and the jury returned a NGRI verdict. He argued, however, that the trial court denied him the opportunity for an outright acquittal. The government argued that a verdict of not guilty by reason of insanity does not result in a judgment of conviction subject to appeal. It also argued that there was no final decision from which to appeal a NGRI verdict because the verdict did not result in a sentence.
The Ninth Circuit recognized that the right of appeal is purely statutory, but found that 28 U.S.C. § 1291 affords jurisdiction to review all final decisions of district courts. The Court noted that the final decision in a criminal case is not triggered until there is a conviction and imposition of a sentence. But here the Court found that the lack of a sentence does not preclude finality because the criminal case has terminated. The Court further found that the defendant’s ability to appeal his civil commitment does not provide an adequate substitute for an appeal of the issues raised in his criminal trial and indeed the defendant might be precluded from raising those issues in a civil commitment appeal.
As you may recall from Issue 4 of Developments in Mental Health Law, the Arkansas Supreme Court held by contrast that a defendant who was acquitted of criminal offense as a result of mental disease or defect and committed to a mental health facility could not appeal his acquittal because the Court only had jurisdiction to hear appeals of criminal “convictions.” The defendant had appealed on the grounds that the court erred by finding he committed the offense of terroristic threatening and by compelling him to use the affirmative defense of mental disease or defect, thereby depriving him of his constitutional right of trial by jury. Similarly, Virginia does not recognize a right of appeal unless such a right is specifically provided by statute. It is doubtful therefore whether the Virginia Court of Appeals or Virginia Supreme Court would entertain such an appeal in a similar case absent a clear statutory provision authorizing that appeal.
Ninth Circuit Sets Out Test for Determining When Mental Impairment Tolls Statute of Limitations for Filing Federal Habeas
The Ninth Circuit Court of Appeals has established a 2-part test to determine when a prisoner’s mental impairment tolls the one-year statute of limitations for filing a federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act of 1996. Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010). The United States Supreme Court had previously upheld Eleventh Circuit determinations finding that the one-year statute of limitations must be tolled if equitable circumstances exist beyond a prisoner’s control preventing him from filing on time. The prisoner must establish that 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. __, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). In determining whether a mental disability constitutes such an extraordinary circumstance, a petitioner must show that the disability severely impaired his ability to meet the filing deadline despite diligent efforts to do so.
In this case, while serving a sentence for other charges, the prisoner was charged with possession of a sharp instrument by a state prisoner and was sentenced to 25 years to life. The prisoner appealed his conviction and after the time expired for a petition for certiorari to the United States Supreme Court, he pursued state habeas proceedings. Thereafter, he filed a late habeas petition in federal court alleging ineffective assistance of counsel. Noting the unusually long sentence, the court appointed counsel to represent him. Counsel argued that the petition should not be dismissed as untimely filed due to the prisoner’s inability to read and write, neurological deficits, borderline to mild mental retardation, concurrent psychosis and lack of assistance available to him. The prisoner’s expert psychologist testified that he had been diagnosed as bipolar with a variety of behavioral and cognitive disorders, and that he could not understand his legal rights sufficiently to make rational choices. The record reflected, however, that the prisoner had prepared a number of administrative and judicial filings, including a pro se habeas petition in 2000 and an administrative complaint regarding medical care in 2001. He had also represented himself pro se at his trial on this charge. The district court denied the late filing finding that his mental capacity was not sufficiently severe to impede his filing of a timely petition based on his second grade reading level and its finding that a jail house lawyer had been available to help with the filing of the petition.
In setting out the standard for review, the Ninth Circuit stated that there must be a causal connection between the petitioner’s mental disability and the ability to file the petition. The Court determined that the relevant question is whether the mental impairment caused the untimely filing and set out the following two-part test:
1. The petitioner must show that the mental impairment was an extraordinary circumstance beyond his control demonstrating an impairment so severe that either
a. The petitioner was unable to rationally or factually personally understand the need to timely file, or
b. The petitioner’s mental state rendered him unable to personally prepare a habeas petition and effectuate its filing.
2. The petitioner must show diligence in pursing claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including whether there was reasonably available access to assistance.
The Court found that this standard “flows naturally” from the Supreme Court’s rulings concerning competency to stand trial in Dusky v. United States, 362 U.S. 402 (1969); competency to plead in Godinez v. Moran, 509 U.S. 389 (1993);and competency to represent oneself in Indiana v. Edwards, 554 U.S. 164 (2008). In other words, the court must determine whether the petitioner is competent to do what the law requires. In examining the totality of the circumstances, the court:
1. must find that the petitioner has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing;
2. determine after considering the record whether the petitioner satisfied his burden that he was in fact mentally impaired;
3. determine whether the petitioner’s mental impairment made it impossible to timely file on his own; and
4. consider whether circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements.
The Ninth Circuit remanded the case for the district court to apply the facts of the case to the standard articulated in its decision.
Tennessee Supreme Court Rules Experts Can Testify to Reflect Capital Defendant’s Actual Cognitive Abilities in Addition to Consideration of IQ Scores
The Tennessee Supreme Court has held that under Tennessee law a defendant can present expert testimony to show that his test scores do not accurately reflect his actual cognitive abilities for purposes of raising a defense of intellectual disability to a sentence of death. Coleman v. State, 2011 Tenn. LEXIS 319 (April 11, 2011). The defendant in this case had been convicted of first degree murder and sentenced to death over 30 years ago. Following the decision in Atkins v. Virginia, 536 U.S. 304 (2001), prohibiting imposition of the death penalty for persons with mental retardation, the inmate filed a habeas petition alleging that he suffered from an intellectual disability. The evidence presented at his habeas hearing indicated, among other things, that his mother had an intellectual disability and history of mental illness, that his home was violent, chaotic and overcrowded, that his mother drank, engaged in prostitution and abused him, and that his father had spent most of his life in prison and had little-to-no involvement in his life. The petitioner had failed 1st, 2nd, 3rd and 7th grade and was only “socially promoted” to higher grade levels, and that he was teased by his fellow classmates. He was lonely and stigmatized as a child and intellectually and socially behind his peers. He was viewed as “dull” by police officers with whom he had many encounters as a juvenile.
Even though eight other state statutes limit the assessment of intellectual disability to scores on IQ tests, the Tennessee Supreme Court found that Tennessee law does not limit the evidence to test scores. The Tennessee statute requires a “functional” intelligence quotient of 70 or below, not just a test score of 70 or below. The Court therefore concluded that its General Assembly wanted courts to make fact-intensive and complex decisions with assistance from experts in the field because “functional” IQ cannot limited to raw IQ scores. Trial courts may therefore receive and consider any relevant and admissible evidence as to whether the defendant’s IQ is 70 or below. It noted that under the Flynn effect recognized by mental health experts, IQ test scores tend to increase over time. Clinical judgment is therefore important in diagnosing and assessing intellectual disability in borderline cases, especially since the standard of error measurement is generally 3-5 points. The Court therefore remanded the case to the trial court to consider expert testimony in determining the petitioner’s functional IQ.