Criminally Yours: Psychotic Episodes And The Criminal Justice System
Even if the crime was committed while you were out of your mind, coming from a good family, having a college degree, and lacking a criminal record will not insulate you from the various circles of hell of the criminal justice system.
I get a lot of clients or families of clients who contact me after their loved one was arrested for committing a crime in the midst of a psychotic episode. These families generally have had no prior experience dealing in an adversarial way with law enforcement. They’ve never been to criminal court, except maybe as jurors. They’d never met a criminal defense attorney.
They often have no clue how things work in the criminal justice system from a defendant’s point of view.
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They assume that because their family member has no criminal history, graduated from a good college, has a mom and dad who are doctors, or politicians, or financiers, the case against their child will be dropped. I mean after all, he did whatever he did in the midst of a first-time psychotic episode. He had no intention of hurting anyone. He just needs medical care. That’s what mental-health courts are for, right? Wrong.
Coming from a good family, having a college degree, and lacking a criminal record do not insulate anyone from the various circles of hell that the criminal justice system can become when a person is charged with a felony — even if he did commit the crime while, colloquially speaking, out of his mind.
In fact, invoking an insanity defense — formally called in New York “not responsible by reason of mental disease or defect” — brings up a whole set of other problems and cedes control of the case to the state agency of Mental Health and Hygiene and may leave the person institutionalized for years.
A lot of these cases work this way: a young person, often in his late teens or twenties, with no history of mental illness and doing fine, starts losing sleep due to the anxiety and pressure of school. He may have no roommates or family who notice this quickly enough to get help, and at some point there’s a break. The person may go out one night and push people on the street, believing he’s saving them from a pending apocalypse, or he might wander into the basement of a downtown office building believing himself to be on a mission for the CIA, or he might stab his dad to death because he thinks he’s an alien. (All true cases.)
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Even without prior criminal history, high bail will be set as often these cases involve injury to friends, family, or strangers. While being arrested, if still experiencing paranoia or hallucinations, the person may resist police, accidentally causing injury to an officer. This, in and of itself, then becomes a felony assault if the officer is hurt in even the most incidental of ways — a bruised finger, a sore back.
The arrestee will be brought to Bellevue Hospital Psychiatric and kept under lock and key until stabilized. A lawyer is alerted when the defendant is calm enough to be arraigned. Sometimes this happens by video from the hospital itself.
In the meantime, the person is often too quickly indicted before a lawyer has had the chance to decipher the young man’s issues or reach out to his family in order to offer the prosecutor some mitigating explanation about his condition or the crime itself. I’ve often found that the prosecutor’s office indicts first and asks questions later.
Of course, later can be too late when the person stands indicted of a felony crime that carries minimum mandatory prison time, in spite of his psychiatric condition.
Psychiatric defenses are tricky. They scare jurors, who often think that if they find the person not responsible by reason of mental disease or defect, he’ll simply get off — be released back to society. This is not the case.
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When a person is found “not responsible,” he is then committed to a prison psychiatric hospital for as long as it takes for State doctors to conclude he is no longer “dangerous.” This, in and of itself depending on the crime, can take years and even decades.
Once he is adjudicated not dangerous, he still is not released to his family. He’ll then be stepped down to a less-secure civil institution where he’ll enjoy a few more privileges but still limited freedom.
Many people believe a crime provoked by mental illness means the person will be referred to a mental-health court. At least in New York, the cases these courts will consider are very narrow in scope. First, they do not take people charged with violent crimes. And that excludes most of the people I’ve met who were arrested while suffering acute psychotic episodes.
Next, even if you are one of the lucky few to get into such a court, say a drug dealer who happens to suffer from depression, the court and prosecutor will make you plead guilty before getting into any treatment. They will then hold the treatment requirements over your head for so many years that any screw-ups, like leaving the program, not loving the meds you’ve been put on, or God forbid, getting rearrested, will land you in jail for more time then you would have gotten if you’d never entered mental-health court in the first place.
This is not to say mental-health court doesn’t serve its purpose. It’s one of the only ways that people suffering with mental illness, not charged with violent crimes, can follow a treatment regimen and eventually get their conviction wiped away, or at least reduced to a misdemeanor.
It’s just that it doesn’t address much of the population arrested during the outbreak of their illness.
What’s the best thing to do should your loved one be arrested in such a state? Contact a good defense attorney with experience in these cases. Someone who knows the right experts, how to deal with the prosecutor, and what help your family member needs.
If you’re lucky and your lawyer negotiates well, she can get the prosecutor to consider giving your loved one the time he’ll need to get better. The defendant will probably have to plead guilty to the felony initially, but the door will be left open for what’s called a “re-pleader” — an agreement whereby if the person does well enough in treatment for however long it takes, the prosecution and the court will ultimately permit him to re-plead to a misdemeanor or even less.
Often such defendants don’t need jail or the stigma of a felony conviction, they just need the right care.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.
