Crime, Health / Wellness

Committing A Crime While Mentally Ill: What Qualifies As ‘Extraordinary’?

Why saddle these defendants with felony convictions when their behavior was not due to criminal intent, but rather, mental illness?

By  
on

Steve Buscemi, Toni Messina, and Kane Balser (Photo by Joan Lebow)

I have a client, Kane Balser, an extraordinary young man who battled mental illness and now appears to have gained the upper hand.

But in 2015, he wasn’t doing so well.  In the midst of a period of mental instability for which he was being treated at group workshops in a hospital, he articulated at a group meeting that he was having violent thoughts. He was carrying a small knife that he used to help his father, an artisanal wall builder. The group moderator, a substitute that day with little experience, asked Kane for the knife.  He was experiencing paranoid thoughts and got up to leave. She called for security and two burly guards raced up the hall toward Kane as he attempted to walk out.

He ended up running down the stairs and in the midst of this psychotic episode, took out the knife and jabbed it toward a hospital employee. The man was stabbed in the stomach.  Thankfully, not seriously.  He needed a few stiches, but criminal damage had been done. Kane was arrested and indicted for attempted murder.

That was almost four years ago. Kane’s parents organized a Kickstarter campaign to raise enough bail to get him out of jail.  They found the best treatment center which Kane attended for 18 months. Since then, his trajectory has been nothing but stellar.  No acts of violence; complete compliance with his treatment and medication regime; acceptance and insight about his condition; and a re-engagement with life including work, writing and performing music, and optimism about his future.

Even though his crime was committed in the midst of a psychotic episode, he could not accept a plea of not guilty by reason of insanity (NGRI).  Why?  Because the consequences of such a plea are devastating.  It includes being involuntarily confined to a hospital for the criminally insane until no longer deemed “dangerous.” A determination of “dangerousness” is subjective.  What might have been a five-year sentence on a plea to the charge, could easily become, as an NGRI, a decades-long commitment to a state mental institution.

Because of this, Kane decided to plead guilty to a felony, admitting he knew what he was doing, even though this was a fiction.  The promised sentence established that if he did well after a set period, he could replead to a lesser felony and avoid jail, or even possibly replead to a misdemeanor if his progress was “extraordinary.”  Having a misdemeanor conviction presents far fewer obstacles to anyone’s future.  But now on the cusp of Kane’s date to be sentenced, the prosecutor believes his progress hasn’t been “extraordinary” enough.

Sponsored

If battling mental illness, doing everything he needs to move forward, rejoining work and social spheres, and leading a good life isn’t “extraordinary” for anyone facing that much headwind, then what is?

The prosecutor alone carries the power to determine what type of conviction — felony or misdemeanor — a person can replead to.  In a case like this, the prosecuting office has a choice.  Follow the entrenched bureaucratic approach which holds that because the crime was violent and the victim unforgiving, the crime must remain a felony. Or take a more wholistic, humanitarian view.

Right now, they’ve chosen the former.

The question remains for Kane and many others dealing with mental illness and the criminal justice system: What benefit does it serve society to saddle these defendants with felony convictions when their behavior was not due to criminal intent, but rather, mental illness?

In a remarkable coincidence with Kane’s upcoming sentencing date, May 15th, the movie “Mental States” made its U.S. premier at the Manhattan Film Festival on Saturday.  The movie tells Kane’s story and the story of all mentally ill people caught up in the criminal justice system.  It shows Kane as an aspiring musician, poet, and writer — sweet, shy, hard working.  It shows his family, never having dealt with the criminal justice system, coming to grips with how that world works and wondering, “Why can’t Kane just get into mental health court? Isn’t that the right place for people like him?”  (While it is, most state courts don’t accept people charged with violent crimes.)

Sponsored

Neither Kane nor the family has given up.  They started a petition (written by me) to draw attention to the issue of how we treat the mentally ill who intersect with the criminal justice system.  Our country has a long way to go.

The good news — mental health courts are popping up in many states.  But they’re still in their infancy and restricted on which people they’ll consider and what services they provide.  In New York City, under the leadership of Mayor Bill DeBlasio and his wife, Chirlane McCray, measures have been put in place to help bridge treatment for the mentally ill between jail and the outside world.  Mobile, multidisciplinary Assertive Community Treatment (ACT) teams have been set up to provide individualized services to the mentally ill in the community or their homes.  These teams, which include psychiatrists, social workers, and therapists, keep tabs on the indigent mentally ill recently released from jail to help them get the treatment, housing, and benefits they need.

The sad truth, however, is that our prisons have become the de facto insane asylums that were abolished through legislation in the 1960s, and those prisons are overwhelmed by the task.

Kane’s story is one among millions.  He was lucky to have two parents with the wherewithal to start a campaign to make his bail; to have actor Steve Buscemi as a family friend; to have filmmakers interested in using his case as a launching pad for a large-scale discussion on this issue.

Hopefully, the Manhattan District Attorney’s Office and other prosecutorial offices around the country will begin to see the wisdom in not rushing to indict cases before knowing the whole story.  Hopefully, they’ll start offering repleading agreements to misdemeanors or even dismissals where the defendant does as well as Kane.

In the short run, we’d like to get Kane a misdemeanor (click here to sign the petition).  In the long run, we’re at the beginning of a long and difficult conversation that this nation needs to have.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Topics

, , ,