The Rights of Mentally Ill People in Arizona’s Justice System

3January
2019

Mentally ill people sometimes feel they have no rights in Arizona’s criminal justice system. This is not the case.

If you have been diagnosed with a mental illness, you have rights. People with disabilities, including psychiatric disabilities, are afforded legal rights to protect them from discrimination, abuse, and neglect in the criminal justice system.

You do not lose your rights, even if you are ordered a course of treatment by the courts.

When a mental illness interferes with a defendant’s right to a fair trial, a Rule 11 hearing may be held. The US Supreme Court set out the test for competency to stand trial in Dusky v. United States, 362 U.S. 402 (1960).

what are the rights of mentally ill people

The rights of mentally ill people

To be found competent to stand trial, the defendant must be able to consult with his lawyer with a reasonable degree of rational understanding and to have a rational and factual understanding of the proceedings against him.

The defendant must be able to assist his lawyer in his defense and understand both the charges and potential consequences of a criminal trial.

People who are receiving mental health treatment have a right to participate in all phases of their treatment, including individual support planning meetings.

They have a right to refuse or consent to treatment unless an emergency court order has been made. People suffering from mental illness have a right to be spared unnecessary seclusion and restraint, or sexual and physical assault.

People with mental illness also have the right to appeal a court-ordered involuntary commitment and to request a judicial review of court-ordered treatment every 60 days.  They have the right to legal advice from an attorney.

If you or a relative is being held in a residential or an inpatient facility, you should not be denied the right to communicate or to send and receive mail and to receive visitors.

Mentally ill people have a right to have their medical and mental health information kept confidential by healthcare providers, with some exceptions. Records may be disclosed to people closely involved in your care; to people if you signed a valid release of information document; to lawyers working on your behalf, and following a court order.

Treatment and evaluation can be ordered by a court in Arizona when:

  • The individual is a danger to themselves
  • He or she is judged to be a danger to others
  • The individual is gravely disabled
  • He or she is persistently and acutely disabled.

In a criminal court or another proceeding in Arizona, you will not always be made aware of your rights if you are suffering from a mental illness. You should not rely on the authorities. Contact a Phoenix criminal defense lawyer who specializes in the rights of the mentally ill. Call us today at (602) 340-1999.

Posted in Mental Health, Mental Health Defenses | Tagged |

Mental Health Courts Will Play a Key Role in Arizona Criminal Justice Reforms

28December
2018

Mental health courts are playing an increasingly important role in Arizona’s criminal justice system. However, the state’s prison population continues to rise making the case for the use of alternatives to incarceration.

More than 100 stakeholders in the state are pressing for alternatives, reported Tuscon.com.

From April to October 2018, Arizona Town Hall hosted 17 forums. Community members and employees of the local criminal justice system were invited to talk about the kinds of changes needed to reverse the rising prison population.  The report noted the number of people incarcerated in Arizona rose by 60 percent since 2000.

Understanding mental health courts in Arizona

Mental health courts in Arizona

That’s significantly above a national rise of 6 percent over the same period, according to reports compiled by the lobbying group FWD.us.

The report notes Arizona has the fourth-highest imprisonment rate in the nation and spends $1.1 billion on its prison system every year. It considers how Arizona can provide better services for mentally ill people who get into trouble with the law.

A final report considered the setting of goals for Arizona’s criminal justice system, the impacts mental illness and substance abuse, and the criminal charging process.

The report emphasized the need for a holistic approach to the issues facing Arizona’s criminal justice system.

The provision of better funding and access to addiction and mental health treatment were among the key demands in the report. It recommended adding a behavioral or mental health response option to 911 calls, better case management for people who returned to their communities after spending time in jail, and better transition and re-entry programs for defendants.

Arizona Justice System is Committed to Mental Health Courts

In a recent policy document, the Committee on Mental Health and the Justice System vowed to consider the following measures to develop mental health courts including:

  • Overseeing the creation of a model guide to help judges develop protocols to work with people with mental and behavioral healthcare needs and the criminal justice system.
  • Set up a summit to share the guide with judges, mental health professionals, court professionals, and justice system stakeholders across Arizona.
  • Review standards at Arizona mental health court standards to gauge how performance measures to include additional data and to examine data analytics. The committee will look at mental health courts in other jurisdictions and evaluate how they work.
  • Review laws and rules and how they can be improved for defendants with mental illnesses.
  • Oversee the implementation of recommendations of the Fair Justice Task Force on mental health courts as approved by the Arizona Judicial Council.
  • Identify ways to educate the public on the process of mental health courts and how they help defendants with mental illnesses.

Mental health courts in Arizona play a key role in keeping people with psychological and mental issues out of jail. See our blog to find out if you may be eligible.

If you believe the criminal justice system is failing to help your loved one’s specific needs please call our Arizona criminal defense lawyers at (602) 340-1999.

Posted in Mental Health, Mental Health Defenses | Tagged |

Communicating Your Mental Illness to Your Attorney as Honestly and Accurately as Possible

17December
2018

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Working with a trusted criminal defense lawyer that you can be honest and open with is important. To receive the best legal representation, you need to always be up front with your attorney about your mental illness and the details surrounding your case. Remember, they are on your side so that you go through the justice system fairly and receive a fair punishment.

Communication starts with your attorney. The right attorney will encourage you to be honest and open the line of communication. Since they specialize in mental health cases, they know and understand what you are going through. All of your rights are protected, including your medical information and your legal issues. An experienced mental illness attorney will know how to break that lack of communication and will deliver compassionate, supportive and non-judgmental legal advice and representation.

When there are no secrets between you and your attorney, it will only help your case. As long as you let your attorney know all of the details, they will be able to help you receive a fair and reasonable punishment. If you are being charged with a crime and suffer from a mental illness such as schizophrenia, bipolar disorder, manic depression or other mental illnesses, highly consider visiting an experienced and skilled mental illness criminal defense attorney for legal advice and representation.

Garcia Law

With more than 25 years of experience, Garcia Law offers seasoned professionals that communicate fully with their clients. They know their clients’ rights and options, always making them feel like they are on their side. From a wide range of legal issues from felonies to misdemeanors, Garcia Law has the proper education and knowledge to fight for you. Just because you have a mental illness, doesn’t mean you should be silenced. Garcia Law will fight to ensure that you receive a fair case and punishment.

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What is the Guilty Except Insane Defense in Arizona?

11December
2018

The guilty except insane defense in Arizona, also known as GEI, can be brought when the guilt of a defendant is not in doubt but his or her mental capacity is.

This affirmative defense allows the defendant to show the existence of a serious “mental disease or defect.” Not all mental disorders allow you to claim the GEI defense. Conditions such as withdrawal from alcohol or drugs, impulse control or psychosexual disorders do not constitute legal insanity.

Likewise, conditions like sudden loss of control, passion, moral decadence or depravity do not quality for GEI unless the defendant suffers from an underlying abnormality or a disease. The condition must be of such severity that the defendant was unaware the criminal act was wrong.

The guilty except insane defense

Arizona’s guilty except insane defense

The insanity defense is controversial in all jurisdictions. Many commentators believe the insanity defense excuses people who are blameworthy and deserve to be punished for their offenses.

Insanity defenses are derived from the M’Naghten rule which was developed in 19th Century England.

Daniel M’Naghten believed he was the target of a dark conspiracy involving the pope and British Prime Minister Robert Peel. In 1843, the woodworker traveled to 10 Downing Street to ambush the Prime Minister, but mistakenly shot and killed Peel’s secretary.

Several psychiatrists testified M’Naghten was delusional during the trial. The jury agreed, declaring M’Naghten not guilty by reason of insanity.

The case caused a public outcry. A year later, a panel of British judges outlined the legal standard that has been used subsequently in Britain and jurisdictions that followed the British model. The M’Naghten rule says a defendant may be acquitted of a crime if he or she labored “under such defect of reason from disease of the mind” as to not realize what they were doing or why it was a crime. It’s also known as the “right-wrong” test.

In Arizona, the seriousness of the alleged offense has a bearing on the way a GEI case will proceed.

In cases not involving a homicide, a death threat, or actual or threatened bodily harm, a defendant found guilty except insane will be committed to a state mental institution for 75 days. The court will initiate a hearing within 75 days of the date of commitment to establish if the defendant is entitled to be released from confinement, or if the accused meets the standards for civil commitment. The defendant is required to show that he or she no longer suffers from a mental disease or defect, and does not pose a danger. If the defendant or his attorney is unable to produce clear and convincing evidence, the defendant could be civilly committed.

In more serious cases involving death, or threatened death and bodily harm, the process is different. If the defendant raises the GEI defense, the court must initially establish if a reasonable basis exists to make the plea. A recent court ruling established criminal defendants who voluntarily undergo a mental health examination after claiming an insanity defense must provide the results of this examination to the prosecution in their case.

If the court is satisfied that there is a reasonable basis for the GEI plea, the court may appoint a qualified mental health expert to evaluate the accused. Alternatively, the court can order the defendant committed for up to 30 days to a secure state-run mental health facility for evaluation. In either instance, the defendant provides a copy of their report for the court, as well as to the State and the defense counsel.

If the defendant is found to be guilty except insane by a judge in a bench trial or a jury, the court is required to sentence the accused to a term of confinement equivalent to the time of the sentence imposed had they been found guilty. This term of confinement is calculated minus the addition of sentence enhancers like prior felonies.

The defendant in GEI cases is confined to a mental health facility rather than a state prison. The defendant will be reviewed by the Psychiatric Security Review Board or PSRB during that time.   If the review board finds the defendant restored to a mental state where they are safe to rejoin society, they may be released into the community subject to conditions. The PSRB continues to maintain jurisdiction over the individual for the term of confinement.

The insanity defense In Arizona is complicated. You should hire a criminal defense attorney with a long track record in this area. Call us for a consultation at (602) 340-1999

Posted in Mental Health Defenses | Tagged |

How to Help a Mentally Ill Family Member who has been Arrested

3December
2018

The arrest of a family member is always distressing. When your family member suffers from a mental illness, the pressures on the family are exacerbated and it can seem overwhelming.

If your family member has been locked up, you may not even know his or her whereabouts. Once the relative has been tracked down, the issue of medication becomes a pressing one.

If your relative requires medication, he or she should inform the jail staff. This may not always happen. If the jail staff has not been informed you should ask your relative’s psychiatrist to contact the jail. In cases where the jail fails to work with a psychiatrist, contact your family doctor. Ensure a written record is made of your request.

Help on the arrest of a mentally ill family member

What to do when a mentally ill family member is arrested

Often relatives panic after the arrest of a mentally ill family member. Although it’s understandable to want to get your relative medication fast, you should be methodical in your approach. The National Alliance on Mental Illness (NAMI) suggests your request should contain the following information:

  • The diagnosis of your loved one
  • The type of medication required
  • Contact information for their doctor
  • Your contact information

Every year, as many as 2 million people with mental illnesses are booked into jails. Often the arresting officers have little comprehension of their illnesses. Your family member may be bewildered and have no idea of the nature of the charges being brought or their implications.

In these cases, it’s important to contact an attorney with decades of experience in defending the mentally ill from the outset. An attorney can protect the rights of people suffering from a wide range of conditions and help ensure they are not being abused by the system.

Family members who fear their loved one is being mistreated can also contact their state’s protection and advocacy agency and the American Civil Liberties Union.

Relatives can help their loved one by getting them out of a cell as quickly as possible. Jails in Arizona house many people with mental disorders who were arrested on misdemeanors but cannot afford bail. After an initial appearance, the judge will usually bail the defendant on a cash-only bond or a secured appearance bond. A cash-only bond is where the entire amount must be tendered in cash. A secured appearance bond is where some of the bond amounts can be satisfied in terms of assets that can be provided, as well as typically 10 percent in cash.

Family members can help by providing cash or assets to get their loved one out of jail as quickly as possible. It’s important for family members to stay involved in the process and make sure the defendant shows up to scheduled court appearances.

Family members should work closely with the attorney. Ideally, make contact with the attorney at an early stage and leave contact details if the attorney is not immediately available.

You should attend the initial hearing and introduce yourself to the lawyer or the public defender appointed in the case. Inform the lawyer you are happy to help. Provide brief details of your loved one’s medical details in writing.

Talk to the attorney about jail diversion programs and alternatives like mental health courts. Stay in regular communication with the lawyer. You should be aware the lawyer represents the defendant and may not be able to share all relevant information with family members. You can ask your loved one to sign a release that allows legal counsel to share information with you.

The criminal justice system in Arizona is tough for defendants. It’s particularly difficult for those with mental illness. Family members play a vital support role and can work effectively with attorneys.

I have more than 25 years of experience as an Arizona mental illness defense lawyer. I’m well aware of the importance of families after the arrest of a defendant with mental illness. Please call me if your loved one has been arrested at (602) 340-1999.

Posted in Mental Health, Mental Health Defenses | Tagged |

What is Competency to Stand Trial in Arizona?

29November
2018

Competency to stand trial in Arizona relates to Rule 11 which gives a criminal defendant the right to a mental examination and hearing when reasonable grounds for an examination are present.

Under Arizona law, reasonable grounds exist when a court finds sufficient evidence to indicate that the defendant is unable to understand the nature of the proceeding being brought against him and to assist in his defense.

Competency to stand trial in Arizona

Competency to stand trial in Arizona involves a hearing

Any party to the case may file a motion to decide the defendant’s competency to stand trial in Arizona. Competency can relate to three aspects of the proceeding:

  1. Facing the trial
  2. Entering a plea
  3. Assisting an attorney in your defense.

Not all criminal defense attorneys are well versed in issues of competency to stand trial. In cases where the defendant’s mental health is a pertinent issue, you should hire a lawyer who is experienced in these matters.

The legal basis of competency to stand trial in Arizona and elsewhere was set out by the US Supreme Court as long ago as 1960 in Dusky v. United States.  The justices ruled in order for a defendant to be found competent the test must be whether the accused has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.”

The defendant must be able to do two things – understand the charges he is facing and be able to assist his lawyer.

The parties must provide the examining mental health experts with all of the available medical and criminal history records no more than three days after the appointment of the experts.

The court may order the defendant undergoes a preliminary examination to assist the court in deciding if reasonable grounds exist to order a more detailed examination.

The court will then weight up whether reasonable grounds exist to examine the defendant for competency. An expert may be appointed by the court to help at the preliminary examination. The reasonable grounds requirement is met if the court finds there is sufficient evidence to support a finding of incompetency.

If the hearing decides the defendant is fit to stand trial the case will proceed. If the court decides there are reasonable grounds to examine the defendant’s competency to stand trial, the case will be moved to a hearing in the superior court.

During Rule 11 hearings, the judges must weigh the state’s duty to protect its citizens against the legal responsibility to protect defendants who can’t help themselves and are unaware of the nature of the proceedings against them.

The court will hold a hearing where both parties present evidence to establish whether the defendant is competent, incompetent to stand trial, or incompetent to refuse treatment. If the defendant is found competent, his or her trial will proceed.

When incompetency to stand trial is found, the court is obliged to order treatment intended to restore competency in the absence of convincing evidence that the defendant’s competency will not be restored within 15 months. When the defendant is charged with a felony, the 15 month period may be extended for another six months when the court finds that progress towards competency is being made.

A number of options are available to the court if it decides competency cannot be restored. The defendant may be remanded for civil commitment proceedings, the court may appoint a guardian, release the defendant and drop the charges without prejudice. This means the charges can be brought up again at some time in the future.

At the Garcia Law Firm, we have a long history of representing defendants in competency to stand trial cases in Arizona. Find out more on our website or call (602) 340-1999.

 

Posted in Mental Health, Mental Health Defenses | Tagged |

What Are the Alternative Paths for Mentally ill Prisoners in Arizona?

26November
2018

At the Garcia Law Firm, we believe everyone deserves a fair and just trial in the Arizona court system. All the circumstances related to a defendant’s behavior must be considered in a case including mental illness. We are believers in alternative paths to incarceration for mentally ill defendants.

Mentally ill people often end up locked up even though jails are the worst places for them. Recently, AZCentral highlighted alternatives to jail.

More than two years ago, Justina Kaleugher, a resident of Glendale, faced jail time after beating up a man and a woman when she was drunk. She committed an assault before but the victims did not press charges. They did on this occasion.

Kaleugher is a type 1 diabetic. She suffers from post-traumatic stress disorder and is an alcoholic. She faced up to six months in jail for the assault.

alternative paths for mentally ill prisoners

alternative paths for mentally ill prisoners often help

However, the judge offered her another option because she suffers from a serious mental illness due to childhood trauma. AZCentral reported Glendale Municipal Court Judge Elizabeth Finn told Kaleugher she could avoid jail if she agreed to attend the city’s mental-health court.

Although this is an alternative to incarceration, it’s a major undertaking. Kalaugher had to agree to take part in an intensive treatment program and meet with the judge every two weeks. By complying, she was able to avoid jail and get the misdemeanor charge dropped.

We are pleased to see mental-health courts like the one in Glendale becoming more widespread in Arizona. They are a way to simplify the intimidating judicial process for people with mental disorders and to end the cycle of repeat jail terms.

It took Kaleugher a year-and-a-half to ‘graduate’ from the mental health court and she experienced some setbacks on the way. She was initially suspicious about the program. After passing through the program, she started working as a recovering coach in Peoria, helping others work through their mental illness and alcohol addiction issues.

People diagnosed with serious mental illnesses or other developmental disabilities can attend mental health courts if one is available in their jurisdiction as long as the offense they have been charged with is a misdemeanor crime.

Shelley Curran, a court services administrator for Mercy Maricopa Integrated Care, told AZCentral, people with mental illnesses are not more likely to be arrested than the general population. However, when they are arrested, they usually remain in the criminal-justice system longer because they are unable to navigate the complex system.

While prison is a blunt instrument, mental-health courts alleviate the issues faced by people with mental illnesses by addressing their individualized needs and creating treatment programs tailored to the individual. The courts are voluntary. People suffering from mental illnesses can instead opt to go through the criminal justice system.

Chandler, Glendale, Phoenix and Tempe are among jurisdictions offering mental-health courts. The available options depend on where a crime is committed.

The city of Tucson also advocates alternatives to jail for people suffering from mental illnesses. As well as mental health courts, the city created sentencing alternatives that reduce jail sentences after a conviction or plea to certain offenses.

A third or subsequent conviction under Tucson City Code Section 11-28, Committing or Offering to Commit an act of Prostitution, carries a minimum 180-day jail sentence. However, the city states this penalty is ineffective in deterring subsequent offenses by defendants who are mentally ill or substance abusers.

Certain defendants are allowed to plead to a single count of prostitution, which requires only a 15-day jail sentence

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I Have Been Charged with a Felony, Can a Mental Illness Attorney Help?

19November
2018

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Whether you have been charged with a felony or a misdemeanor, the attorneys at Garcia Law will defend the mentally ill no matter the circumstances. Our staff has experience with all types of cases for the mentally ill such as DUIs, drug offenses, homicides, robberies and more. So, what can you do if you are mentally ill and have been charged with a felony?

The first step after being charged with a felony is to meet with a trusted and skilled attorney. A felony is a serious crime, whether it’s violent or non-violent. If you have been charged with a felony, you could face one to 25 years in prison. In fact, you most likely will serve at least one year of imprisonment. It depends on the crime, severity of the conviction and previous offenses. For example, a class 1 felony conviction can result in a 25 year sentence.

However, if you have a mental illness and are charged with a felony, don’t let that stop you from a fair court process. Legally accused of a serious crime can come with serious consequences. If you have a mental illness, you could bring your case to the mental health courts. Keep in mind that some mental health courts are restricted to misdemeanors. This is why legal representation from Garcia Law is beneficial. We will pay close attention to your case, finding ways to receive treatment instead of punishment, or a combination of both.

Why Garcia Law?

The attorneys at Garcia Law understand the legal system and the mentally ill. Your rights must be protected in the court system, especially if you have a mental illness.  Garcia Law has experience with those suffering from mental disorders such as bi-polar, schizophrenia, mood disorders, psychotic disorders and personality disorders. We understand that you are not in full control of your mental health and will seek justice no matter what.

 

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Why a Lawyer Must Investigate the Defendant’s Childhood History

19November
2018

Mental health problems can often be traced back to an early age. Childhood trauma can affect adults later in life. For this reason, it’s important for a lawyer to investigate his client’s childhood history in criminal proceedings.

A defendant’s childhood history may have a long-lasting impact and be an underlying factor leading to a crime. Explaining the root causes of mental illness to a jury can help jurors understand the defendant’s motives and issues.

The importance of a defendant’s childhood history

A defendant’s childhood history may be important

According to the Center on the Developing Child at Harvard University, children can demonstrate clear characteristics of anxiety disorders, depression, attention-deficit/hyperactivity disorder, posttraumatic stress disorder, and other conditions like autism, at a very early age.

However, children respond to emotional experiences and traumatic events in a very different way to adults. Trauma such as child abuse can trigger issues like PTSD.

Researchers associated with the Kaiser Permanente and the Centers for Disease Control and Prevention looked at adverse childhood experiences (ACEs). The study found that ACEs are associated with a range of negative outcomes in later life, including mental and physical disorders and aggressive behavior.

The research examined offenders from four different groups who were referred for treatment at an outpatient clinic in San Diego, California after criminal convictions.  The groups were nonsexual child abusers, domestic violence offenders, sexual offenders, and stalkers.

The results of the research found the offender group reported nearly four times as many adverse events in childhood compared to a sample of the average adult male population. Eight of 10 childhood events occurred at significantly higher levels among the criminal population. Convicted sexual offenders and child abusers were more likely to have experienced sexual abuse in childhood than other offender types.

Evidence related to a defendant’s character is admissible during sentencing, the U.S. Supreme Court established in the case of Lockett v. Ohio.

Mitigating evidence in a criminal case includes education, life history, and family background. In the U.S. Supreme Court case of Wiggins v. Smith, Wiggins argued the failure of his attorney to investigate and present evidence of his dysfunctional background was detrimental to his case. He presented expert testimony from a forensic social worker relating to the severe physical and sexual abuse he suffered at the hands of his mother and under the care of a series of foster parents. This evidence was not introduced by his lawyers before he was convicted of capital murder by a Maryland judge.

The justices held the performance of Wiggins’ attorneys during sentencing violated his Sixth Amendment right to effective assistance of counsel.

At the Garcia Law Firm, we are dedicated to highlighting every factor that is pertinent to a defendant’s mental state during a criminal proceeding. Please call us if you are facing criminal charges at (602) 340-1999.

Posted in Mental Health, Mental Health Defenses | Tagged |

What are the Conditions for Pleading Mentally Ill

18October
2018

In the state of Arizona, there are times when a person might be able to enter an insanity plea or mental disorder plea. This is when a defendant pleads guilty to a criminal offense, but does not take responsibility for their actions due to insanity or a mental illness.

Photo by Sebastian Pichler on Unsplash

It can be difficult to stand trial when suffering from a mental illness. Arizona does offer the option to take certain cases to Mental Health Courts. These are specialty courts that combine judicial supervision along with community treatment and support for those with a mental illness. Mental Health Courts help reduce criminal activity and improve the quality of life of the defendants. They have been able to reduce incarceration and prevent more crimes from being committed, all while offering help and support.

To be able to enter a mental disorder plea, the defendant must undergo an exam and the results must be disclosed. When pleading mentally ill, this doesn’t mean the defendant is not guilty, but that they were unaware of the criminal offense they were committing because of a mental illness. Arizona uses the M’Naghten Rule to test if the defendant was sane during the time of the crime. Under this rule, the defendant could be found not guilty or receive a lesser sentence if they are unable to determine right from wrong. Essentially, they were unaware they were doing something wrong when committing the crime.

Legal services and representation are available for defendants with a mental illness that commit arson, robbery or even assault. When pleading mentally ill, you could get the treatment you need to change your life, reduce your sentence or go to a mental health facility instead of spending time in jail. In some cases, charges could even be dropped.

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