- [Jeff] Welcome to Healthy Minds.

I'm Dr. Jeff Borenstein.

Everyone is touched by psychiatric conditions, either themselves or a loved one.

Do not suffer in silence.

With help, there is hope.

(soft piano music) Today on Healthy Minds.

- Criminal charges are serious, and simply because someone has a mental disability does not mean that those charges will go away.

We know that uniforms and sirens and guns and shouted commands, cannot only be frightening and off-putting, but they may cause the person with a mental disability to escalate the situation.

- [Jeff] That's today on Healthy Minds.

This program is brought to you in part by the American Psychiatric Association Foundation, the John and Polly Sparks Foundation and the WoodNext Foundation.

Welcome to Healthy Minds.

I'm Dr. Jeff Borenstein.

What should you do if a loved one becomes involved in the criminal justice system as a result of a psychiatric condition such as schizophrenia or bipolar disorder, or a neurodevelopmental condition such as autism?

How do you navigate the criminal justice system?

Today, I speak with leading expert, Elizabeth Kelley.

Elizabeth, thank you for joining us today.

- Thank you for the invitation.

- I wanna jump right in and ask you, what should a family do if their loved one, as a result of their psychiatric conditions such as schizophrenia or bipolar disorder or neurodevelopmental issue such as autism or neurologic issue such as dementia - what should a family do if their loved one is involved in the criminal justice system as a result of their behaviors?

- If the family of a person with a mental disability, like you outlined, has a loved one with, who is ensnared in the criminal justice system, they should immediately contact an experienced, underline, experienced criminal defense lawyer.

The fact of the matter is criminal charges are serious, and simply because someone has a mental disability does not mean that those charges will go away.

Even if someone has been treated for many years by experienced clinicians, a criminal defense lawyer has to present forensic mental health evidence showing the nexus between the diagnosis as well as the conduct charged.

It may very well be that that individual is not competent to proceed.

It may very well be that that person was insane at the time of the act, but nonetheless, the family needs to work with the criminal defense lawyer to ensure, not only that those mental disabilities are taken into account and that they matter, but that the individual's constitutional as well as statutory rights are protected.

- We know this is a very big problem in our society, not just for individual families, but so many people are in prison as a result of their psychiatric illness or other conditions and the behaviors that occur and they get installed in the criminal justice system and are in jail.

There are actually more people in prisons then there are in psychiatric hospitals.

And in prisons, they're really not getting adequate treatment.

So I'd like you to sort of talk about the broad picture of this and then we'll narrow it down to individual families.

- Jeff, you identified a thousand different issues and I realize that we only have about a half hour to talk.

The last act that President John Kennedy committed before he went to Dallas in 1963 was to sign the legislation that started the process of closing down so many of the shameful mental health facilities we had in this, in our society.

That was the right thing to do, but unfortunately, the dream of a robust system of community mental health services did not come to fruition.

So that is why, as you said a few moments ago, our jails and our prisons have become defacto metal institutions.

What we have effectively seen over the past 60 plus years is that the process of deinstitutionalization has become trance institutionalization.

I watched some of your back episodes and I saw that Judge Steve Leifman of Broward County said that today more judges see people with mental disabilities than do treating physicians, and that is painfully true.

People with mental disabilities, for a variety of different reasons, get caught up in the criminal justice system.

For instance, an individual who is on the autism spectrum or perhaps has an intellectual disability or might even be in the throes of a serious mental illness, may turn to online companionship.

They in turn may become victimized, and ultimately they may be lured into committing crimes.

On a similar note, people with various mental disabilities may appear suspicious.

You may have someone in the throes of psychosis or someone with autism spectrum disorder who exhibits odd behaviors and they may become suspicious.

Maybe they may be pulled over by law enforcement and then they may act out because of fear or simply because they are manifesting the symptoms of their mental disability.

Then in turn, they may be arrested, they may be in custody, they may be susceptible to giving a false confession.

During the pendency of their criminal case, they may appear uncooperative.

They may appear stubborn and intransigence.

They may be a tremendous bother and burden to stakeholders in the criminal justice system.

But everyone in that system, from law enforcement, to defense attorneys, to prosecutors, to judges, to probation officers, must understand that everyone with a mental disability is unique and that their symptoms must be accommodated and that at bottom, irrespective of what they might have done or not done, the criminal justice system is the worst place in the world for them, because they need treatment, not punishment.

- You were very eloquent in putting together the problem and what occurs for people.

So what do you do?

Your loved one, now you've, you said at the beginning, get an experienced attorney who can help.

Then what do they do?

How do they help the person who now may have been convicted, may be on trial?

What do they do to help that person?

- Well, first of all, everyone should realize that any charge against a person with a mental disability is a serious charge.

Whether it is only a misdemeanor or the person isn't, is charged in federal court.

Those charges are not simply going to go away, and depending upon the age of the individual with a mental disability, those symptoms must be managed.

This is a lifelong challenge, a lifelong journey.

So for instance, you may have a young person with an intellectual disability.

Something needs to be crafted to ensure that that young person understands what they did, never does that again, and that that person does not pose a danger to the community.

On the other end of the age spectrum, the family may have a loved one with dementia and things are not only not going to get better, they're probably going to get worse.

The bottom line is, Jeff, the mental disability does matter and the role of a qualified forensic mental health expert cannot be overstated, because a powerful forensic evaluation will show the prosecutor, as well as the judge, the relationship between the diagnosis, or diagnoses, and the conduct charged.

And in turn, that forensic report can be used to craft some sort of remedy that will keep the community safe as well as ensure that the person with a mental disability does not harm him or herself.

- Sometimes a person, due to their illness or other condition, may be acting in an unusual way, as you said, and that brings law enforcement to them and they may not be able to interpret what's going on, both the law enforcement person and the person with a condition, and it could escalate and then it really gets serious.

What do you recommend, both to law enforcement and to families who have a loved one that this could happen to?

What do you recommend to them to avoid those kind of very difficult situations?

- Well, the first type of preventative measure that should be taken should be proper training for all law enforcement, and we're doing a better job in this country about educating law enforcement about the particular manifestation of different kinds of mental disabilities.

So for instance, we know that uniforms and sirens and guns and shouted commands cannot only be frightening and off-putting, but they may cause the person with a mental disability to escalate the situation, and to in fact, appear very, very dangerous.

But if in fact, the person is charged, it depends on the jurisdiction.

It depends on the level of offense the person is charged with, and it depends upon the various kinds of diversionary options that are open and available within that jurisdiction.

So for instance, if the individual is charged in a jurisdiction where there is a behavioral health court or a mental health court or a veterans court, that might very well be an appropriate option.

But please, keep in mind, Jeff, that those options are not always available.

Plus, there may be certain kinds of people, because of the offenses that they are charged with, who are ineligible for those types of diversionary options.

So for instance, if an individual is a repeat offender or if the individual has committed a crime of violence, or if that individual has committed a sexually oriented offense, then perhaps that person is ineligible for those types of offenses and wherever and with whatever an individual is charged, if that individual pleads guilty or is found guilty by a jury, the collateral consequences of any kind of conviction should not be minimized.

Whether, again, it's a misdemeanor or it's in federal court.

Because even if the person is not sentenced to jail or even prison, there may still be various collateral consequences with that conviction, whether it is for housing, whether it is for various licenses, whether it is for holding various jobs.

And one thing I do wanna say, Jeff, is I mentioned scenarios of pleading guilty and perhaps being convicted by a jury and maybe going through a diversionary option.

It could very well be that a compelling forensic mental health expert or report will be strong enough to negate, and here I'm going to talk like a lawyer, what we call the mens rea or the intent that is required by that section of the law that the person allegedly violated.

So for instance, if you have a powerful forensic report that shows that the person was indeed insane at the time of the act, he or she did not know what they were doing, that could very well negate that section of the criminal code that says no one shall knowingly violate or purposely do the following.

- So if somebody is interacting with the police and gets agitated, but they're psychotic, and really that may be out of their control, this may be one area that a lawyer, along with a forensic evaluation, can help that person not have to pay the consequences, at least severe consequences.

They should get treatment, but not pay worse consequences for that action.

- Spot on, yes.

- So a family is now faced with this situation.

Their loved one's been arrested.

How do they find somebody who can really help them legally with this?

- I have found that parents within the disability community are very strongly networked.

So what they might wanna do is reach out to other families who have had a loved one who got in trouble with the law.

By the same token, depending upon the nature of the charges, families may not tell anyone.

I cannot tell you how many families I have worked with over the years who are just so guilt ridden that their loved one has been in trouble, who feel so badly that they haven't shared this with anyone.

So that being said, it's like any decision we undertake when we want to find a qualified professional.

You go online.

You not only look at the websites, but you read between the lines of the websites and interview various attorneys.

Be very, very careful of someone who promises you the moon.

Similarly, be very, very careful of someone who says the disability does not matter.

It does.

- If someone doesn't have the resources to hire an expert in this area and is really gonna rely on who is supplied, what type of guidance, questions, can the family provide to that legal expert to make sure that they do the best possible job for their loved one?

- Well, it is absolutely crucial that the attorney on the case, whether court appointed or retained, seek an independent forensic mental health evaluation.

That being the case, if funds are not available, the court should and will appoint someone to evaluate that individual.

Many, many families think that because their loved one has a diagnosis and has been treated for weeks, months, perhaps years and decades, that it is enough to give that attorney all of their medical records and then expect the attorney to work magic with those records.

We as attorneys are only that.

We are not forensic psychiatrists, we are not forensic psychologists.

And what is needed is a report and perhaps later testimony, at a hearing or a trial by that forensic mental health expert giving the diagnosis and explaining the impact by the diagnosis.

I should say, furthermore, that the reason why you would have an independent forensic mental health expert, and not a clinical expert involved in the case, a clinical or treating doctor has an inherent conflict of interest.

But beyond that, a qualified forensic mental health expert is specially trained in working with attorneys in writing forensic reports, in testifying at a hearing, or at a trial, and most importantly, reviews all of the discovery in a case.

By that, I mean police reports, witness statements, body camera footage, footage from the jail, various other records that are crucial in the case.

That way, the forensic mental health expert is in a position to say, with great knowledge, that there are reasons why this person with a mental disability was vulnerable to committing this particular act.

- So this is very important guidance, and I'm just gonna reiterate it, 'cause it is so important that whether you can afford it or not, all people should have and are entitled to have a forensic expert do this evaluation.

They're treating psychiatrists or psychologists.

They're important, but they're not the one with that expertise that could help the legal team figure out the best approach to helping your loved one.

- That's correct, and also, families should know that it may very well be that the individual needs a team of experts.

So for instance, the individual may have bipolar disorder, so probably a forensic psychiatrist would do the initial evaluation, because as you know, psychiatrists tend to have a strong grounding in mood disorders.

But beyond that, it could also be that the individual with bipolar disorder has a substance use issue, and because of that, an addiction specialist is also needed to be part of the team.

- So you really want to cover all bases, all aspects of the person's condition, really to get the best possible outcome.

- Exactly.

and I also emphasize to attorneys that they should be open to the fact that the person may have a constellation of different issues.

- Elizabeth, you're so passionate about this and you've dedicated your professional career to it.

Why?

What brought you to this important area of the law?

- Many years ago, I had my first client with what we then called mental retardation.

We now call an intellectual disability.

And he was conned by his so-called friends into being a lookout during a string of burglaries.

And I realized that young man had a very, very different sense of responsibility, a very different level of participation, than, if you will, your average person charged with a criminal offense.

And then I had my first person with what we call a co-occurring disorder.

That is to say, he not only had an intellectual disability, but he also had a mental illness.

And my practice just started evolving to the point where this is the focus of my practice.

This Jeff, as you said, is my reason for being.

- Well, thank you for all that you do on this.

Such an important issue that affects so many people.

And many people do suffer in silence when this happens.

So thank you for all that you do and continue to do.

And thank you for joining us today.

- And thank you for spotlighting this issue.

(soft music) - If your loved one is involved in the criminal justice system as a result of symptoms or behaviors from their condition, seek out professional help and expertise.

Remember, with help, there is hope.

Do not suffer in silence.

With help, there is hope.

This program is brought to you in part by the American Psychiatric Association Foundation, the John and Polly Sparks Foundation and the WoodNext Foundation.

(soft piano music)