David Gartenstein: Vermont law at the intersection of the criminal justice and mental health care systems needs to be fixed

This commentary is by David Gartenstein, who works as a deputy state’s attorney in Windham County.

Vermont’s laws at the intersection of the criminal justice and mental health systems are broken. The government needs to be able to act when people cause harm to others, but Vermont law does not provide a consistently effective response when people with mental illness and cognitive disabilities commit crimes.

Criminal justice is about responsibility and consequences, but there are times when offenders’ cognitive status prevents those issues from being reached. When defendants do not understand the legal system and cannot help their lawyers, they are found incompetent, so charges cannot proceed and responsibility cannot be determined. People with mental illness or cognitive disabilities who did not understand their conduct was a crime or could not conform their conduct to legal requirements are found insane and cannot be held criminally responsible.

To make sure our community is safe, the risk posed when people commit crimes, including incompetent or insane defendants, should be assessed, and supervision, monitoring, treatment and programming should be delivered. This is where Vermont law breaks down.

Based on poor drafting 50 years ago that the Legislature never fixed, Vermont law only authorizes an initial 90-day commitment to Department of Mental Health custody when a person is found incompetent or is acquitted by reason of insanity based on mental illness. The law does not distinguish whether the person was making a ruckus, possessed drugs, drove drunk, burglarized a home, assaulted another, sexually offended or killed someone.

At the end of those 90 days, the Department of Mental Health has sole authority to seek continued treatment for up to a year at a time. If the department applies for continued treatment, decisions are made in secret proceedings that prosecutors and victims cannot attend. When the Department of Mental Health does not seek continued treatment, its decision is unreviewable.

Vermont has no structured system to monitor if incompetent defendants have progressed so they can understand the process, help their lawyers and be routed back to criminal court. Vermont has no structured system for determining when criminal cases against incompetent defendants should end. Neither are victim rights comprehensively protected.

What happens during the Department of Mental Health commitment also often is inadequate.

A small group of mentally ill defendants who pose risk of harm to self or others need to be committed to treatment in mental health hospital beds. The number of these beds in Vermont is small, and the commitment criteria are rigorous. But the problem with Vermont’s system runs deeper than a shortage of beds.

When a mentally ill, incompetent or insane defendant does not need hospitalization, Vermont law only authorizes community based civil commitment for treatment, provided by the Department of Mental Health through non-governmental organizations that deliver care on a voluntary treatment model.

The NGOs do not assess risk, supervise or monitor defendants or provide programming to respond to criminal conduct. As the Department of Mental Health administers the system, it is little more than an opportunity for mentally ill offenders to seek treatment if they choose to, and the department routinely allows commitment orders to end if defendants decline to engage.

If defendants are non-compliant with treatment orders, the only remedy is hospitalization, but that only happens rarely, based on clinical needs. People in Department of Mental Health custody often continue committing crimes with little or no response from the NGO or the department. I handle prosecutions against incompetent defendants with multiple pending cases, and as part of my work l am regularly confronted with this systemic problem.

The problems with this system exist in real life. Defendants charged with all types of crimes, including murder, burglary, assaults and sex offenses, are found incompetent and insane.

This criminal conduct harms our neighbors and family members. It tears at the fabric of our community. But prosecutors routinely must tell victims that cases cannot move forward; Department of Mental Health will not monitor, supervise or ensure treatment; victim rights will not be protected; and information about the offender is not available. Many incompetent offenders are charged repeatedly. They cycle through a revolving door of criminal conduct, arrest, jail, hospitalization and discharge.

The Legislature currently is considering S.192 to govern a forensic facility that would have nine beds for defendants who do not need hospital care, but are not safe for release into the community. However, these draft laws would continue the same failed model already in place.

Ensuring the public knows how dangerous offenders are supervised is critical, but S.192 calls for gatekeeping decisions about admission to be made in secret, without prosecutor involvement. The forensic facility would be custodial, but S.192 would treat it as community-based and give the Department of Mental Health administrative discretion to discharge. Oversight would continue to be secret, information about defendants’ progress would not be available, and victims would be denied necessary information.

Vermont law could be fixed. All incompetent or insane defendants could be required to participate in risk assessments. Mandatory programming and treatment could follow, with meaningful oversight and monitoring for a time period correlating to the seriousness of the crime. Information about defendants’ progress could be made available. Proceedings could be public, based on full information, assessment of risk of harm and likelihood of becoming competent. Victims’ rights also could be protected.

The Legislature should act to repair the intersection of Vermont’s criminal justice and mental health care systems.

Read the story on VTDigger here: David Gartenstein: Vermont law at the intersection of the criminal justice and mental health care systems needs to be fixed .