Constitution Day 2016: Rights of People with Mental Illness
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Constitution Day 2016: Rights of People with Mental Illness

August 26, 2019

>>From The Library of
Congress, in Washington, D.C. [ Silence ]>>Roberta I. Shaffer: Good afternoon. My name is Robert Shaffer and I
have the absolute pleasure and honor of serving as the 24th
Law Librarian of Congress. And I’m also delighted to be convening this commemoration
today, of Constitution Day. For those of you who are concerned
that something has happened to your calendars or your
clocks on your iPhones, it is true that Constitution Day
normally would occur to mark the day that the Constitutional Convention
ended in 1787 in Philadelphia. And that would be the
17th of September. But the 17th falls on a Saturday
this year, and so as such, The Law Library of Congress,
which always takes responsibility for celebrating the Constitution on
behalf of The Library of Congress, has decided that we will
elongate the celebration, because nobody can celebrate
the constitution too much. But we’re not going to
overdo it, I promise you. So we’re going to start today and
we’re going to end the celebration on September 26th at noon
in The Pickford Theater where we will show a very, very poignant documentary film
called Last Day of Freedom. And a documentary film that I will
tell you about in a few minutes. But we will also be showing the
same film, Last Day of Freedom today at two o’clock in The Law Library. So if you cannot come back
on the 26th or if you would like to see it today and
possibly see it again on the 26th, you would be most welcomed
at any time. So, Constitution Day, September
17th, has only been celebrated since 2005, even though
the constitution has been with us for a very long time. The day actually started out
to commemorate Citizenship Day. Initially, in the 1930s, the late
1930s, Citizenship Day was created to honor new Americans and
William Randolph Hearst. The newspaper magnet was very
instrumental in promoting it through his newspaper chains. It was initially celebrated in May
and then in the 1950s it was changed to be celebrated on the day that the
Constitutional Convention finished, September 17th. And it wasn’t until 2005
that Citizenship Day, which was that original idea
that happened in the 1930s, and Constitution Day,
celebrating the actual completion of the Constitutional
Convention, were merged. So that is the history
of Constitution Day. When Constitution Day was
created in 2005, it was determined that every federal
agency should find a way to celebrate the Constitution, but
particularly that the Department of Education should reach out and help school children
understand the content and the meaning of the Constitution. And as a result, little, mini
Constitutions were created. And I have carried mine
with me for many years, so much so that it has lost its
cover, but I always have it with me. And I keep it in a very non Library of Congress preservation
casing, a sandwich bag. So I hope my colleagues in the
preservation unit will not be upset with me that my Constitution is
held in such high or low regard, depending on your standards. Now why is it that The Law
Library is so delighted to celebrate the Constitution? Well, of course, we are committed
to Constitutional ideals, and the values of the rule of
law, which our own Constitution, and the Constitution of nations
around the world, embodies. Our offices are also in the
James Madison Memorial Building across the street. And as many of you know, James Madison is called the
Father of the Constitution. Not only because he was
so involved in the writing of the actual Constitution,
and of the Bill of Rights, but after the convention
was over, he was an advocate for the ratification
of the document, and he was very instrumental in the
states and the people therefore, ratifying our Constitution and giving us this
living, wonderful document. We wanted to be in this room,
however, so that you could look through the blinds and see the
United States Supreme Court and have that in your minds as
our program progressed. Now today, we are taking a bit of a different approach towards
celebrating Constitution Day. In a sense, we’re focusing on the
8th amendment of the Bill of Rights, which talks about not implementing
excessive fines or excessive bail, but also addressed the issue of
cruel and unusual punishment. In 2018, the Library
of Congress intends to celebrate the 800th anniversary
of the Charter of the Forest. That’s a British document,
since you can well imagine, since it’s the 800th
anniversary, couldn’t be part of our legal tradition,
it’s far too old. But nonetheless, we believe
that the concept of cruel and unusual punishment emanates
from the Charter of the Forest. So we’re giving you a
little bit of foreshadowing about a very exciting year
that we will celebrate in 2018. But today, we have a
very special guest, and I know that you can read
his biography in the program, but I also want to thank Dr. Robert
Maman for giving this talk today. At the 11th hour, we
found it necessary to change our Constitution Day
celebration agenda, and he very, very graciously agreed to
step in and talk about a topic that is very near and dear to his
heart and that is mental illness. Just this past Monday, there was
an editorial in The New York Times, citing that the fact that 40 million
Americans, or 20% of our population, suffers from some aspect
of mental illness. And Dr. Maman will talk to
us today about the confluence of the criminal justice
system and the mentally ill. So without further a due,
it’s my honor and privilege to turn the podium over
to Dr. Robert Maman. [ Applause ]>>Dr. Robert Maman: Good afternoon. I will talk about mental
health courts, which is rather new concept
dating from the 1990s. Mental health court
has been developed to create a special procedure where
mentally ill offenders charged with criminal activities
will be diverted from correctional facilities to
community mental health based care. Yes, thank you. The shared goal of the mental health
court are to improve public safety by reducing criticism, improving
the quality of life of people with mental illness by
increasing their participation in effective treatment,
and reducing court and correctional related costs. This philosophical point
of view is not new, as it follows several approaches
including crisis intervention teams, jail diversion programs,
specialized probation and parole caseloads developed to address the significant
over-representation of people with mental illness in the
criminal justice system. The estimate brings the percentage
inmates with serious mental illness to 20%, therefore triggering a
reading of the c’est la vie gamble of 1976 where the supreme
court determined that the 8th amendment requires that
prison officials provide a system of adequate medical care
including mental health care.>>In another approach
to address crime in the United States is worth
considering as the US continues to highest incarceration rate in
the world with 5% of the population, but nearly 25% of the
world’s inmates. Looking at the history, it
seems that the recent shift in the correctional population
under incarceration started with the reduction in the
number of beds available in the states’ [inaudible] network. The de-institutionalization
of people with severe mental illness began
in the mid 1950s around the time when the first important
anti-psychotic medication, named Thorazine, became
available in the United States. The de-institutionalization was
accelerated in the mid 1960s in connection with federal
incentives and court decisions. This process led to the
disappearance of more than 90% of the state psychiatric beds
for long term care in the US. The advocate of the
de-institutionalization believed that the closing of said hospitals
would encourage the mentally ill population to live
more independently in the community while
treatment will be provided by community health programs. Unfortunately, the federal
government did not provide sufficient funds for
community programs to meet the increased
demand for services, and the states were not able
to fill the financial gap. As a result of this lack of service
availability, hundreds of thousands of mentally released in the community did not
have access to treatment. These individuals were involved in
substance abuse and misdemeanors, and they ended up serving
time in our jails and prison, with remarkable increased of the
mentally ill population behind bars. It is important to realize that
mentally ill individuals are known to be ostracized and
stigmatized by other inmates, adding to the suffering
related to their illness. And this additional awareness
certainly justifies mental health court existence, at least in part. The first experiment
took place in the 1980s, when Judge Evan D. Goodman
helped establish a court dealing with mentally ill offenders
at Wishard Memorial Hospital in Indianapolis, Indiana. In this first sitting, the
criminal charges were put on hold and the treatment providers sought
a civil commitment sending those patients to psychiatric treatment. Judge Goodman remained involved
by scheduling periodic hearings to follow the progress
of those patients. Eventually, the criminal
charges were dismissed, but the remained under
civil commitment. Those civil commitments
could have been received for inpatient treatment as
well as outpatient care. This experiment was eventually
dissolved in the 1980s, but fortunately, only a
few years later, in 1996, a number of various mental health
workers, who had been involved with Judge Goodman, started a
new mental health court program with the support of the local
authorities in Marion County, where this new program
was taking place. Shortly after this creation,
other programs were initiated in Broward County, Florida,
overseen by Judge Lerner-Wren in 97. And a couple of years later,
Anchorage, Alaska and San Bernadino, California had their
own mental health court. From four mental health courts in
1997, the number has grown to more than 300 at present, and
the number keeps growing. Looking at the making of
fashioning of mental health court, I wanted to mention that in the fall
of last year, I was very fortunate to be invited to serve
as special adviser to the Montgomery County
Mental Health Court Planning and Implementation Task Force. Presenting a task force where
judges, defense attorneys, prosecutors, mental health
crisis service coordinators, rehabilitation service
administrators, local correction administrators,
family services, police and sheriff office
staff showing that the chair of the task force, a gentleman named
Phil Andrews, had done his homework in putting together such a
comprehensive professional team. One of the most remarkable
features of the court is that they are closely connected
to the name of the local judge, as the main model of the
creation in most jurisdictions. In fact, it is essential
that the judge involved in each court remain the same
person in order for the court to develop a personal relationship
with the mentally ill offender. During the status hearings, the
judge that the participant knows, will have to develop a
relationship with this participant, to give a stronger meaning
to various rewards provided for adherence to the condition of
participation, but also sanctions for non-adherence in order to
ensure an ongoing interaction between participant and
the court team members. Essentially, the judge
accepted the role of becoming a social worker
involved in the treatment team, and that’s a big step and the
judge has to express an interest, and the will and the courage to
be able to fulfill that role. In each jurisdiction, the court
has it’s specific requirements, but most have at least four
common characteristics. The first one is that each
defendant will receive a customized rehabilitation and treatment plan
to address his or her situation. Number two, the treatment plan will
be implemented by a [inaudible] team of professionals, having legal,
correctional, and medical expertise. Number three, as I mentioned
earlier, regular status hearings, at which treatment plans and other
conditions are periodically reviewed for appropriateness
will be scheduled and those are the status hearings
where the judge role is so important in the relationship
with the participant. Number four, the criteria defining
the participant conditions have to be provided and have to be clear. The participant offenders under consideration are
usually screened early in the criminal process. They can be referred to
the court’s attention by pre-trial service
officers, social workers, public defender’s office,
but also by jail officers and by their own family
as well as among others. The time between the
arrest and the placement in the court’s jurisdiction,
is an important measure of the effectiveness
of the court mandate.>>Each court has to create the
list of criteria which will be used to select the offenders
likely to be considered and then those candidates will
be given a more comprehensive assessment to determine their
interest in participating in the program and to review
the specific mental illness that they present with as well as their individual
needs in the community. This initial acceptance
criteria will define which type of mental illness, crime committed
and criminal history are likely to be accepted by each court. Regarding mental illness, the trend
seems to be limited to suffering from what we call as mental heath
providers, serious mental illness, which was categorized under axis one
pathology in the DSM classification. Those serious mental illness
diagnoses consists essentially in schizophrenia, bipolar disorder,
major depression as well as anxiety. And it is important to make a
difference between this pathology and what was called axis two
pathology in the DSM full manual, which was referring to
personality disorders. The belief was that people this
major mental illness have less control, or even no control,
over their behavior and that in the position to the personality
disorder, patient [inaudible]. But there are two remarks. The first one is that this
early distinction in control, or lack of such, depending
on the diagnosis given, this early distinction is now
challenged by recent findings where functional brain images are
showing some remarkable difference in the brain of the individual
suffering from personality disorder versus individuals
with no mental illness. So in light of such findings, the question of whether
those individuals with personality disorders
have control over their behavior provides
more and more cloudy answers, because the more scientific medical
data obtained shows the abnormality of the brain function. Another element which
is worth mentioning is that this very practical DSM
full classification of axis one and axis two of personality disorder
is not removed because a new DSM, which stands for diagnostic
and statistical manual of mental disorder, this new
classification does not have those axis anymore, so the
realm of mental illness of becoming more cloudy,
at least to me. It is interesting to know that a
study of 2005 in Broward County, Florida, found that the participants
in the mental health court, carried a diagnosis of schizophrenia
in 17% of the case, major depression in 40% of the case, and bipolar
disorder in 24% of the cases. [ Silence ]>>Beside, after this number
one element of mental illness which should be considered,
the court looked at the type of relevant criminal activity which
would seem appropriate for them to accept in the participant
in the program. Most of the court started
by accepting misdemeanors and public nuisance crimes. Also, besides the court decision
of choosing which crime it wanted to address, there’s also a
jurisdictional limitation of the court, could be
coming into question. For example, a court that operates within a municipal court will
have jurisdiction primarily over misdemeanor charges. So all those elements have to
be taken into consideration, and explain the differences
between each court function and criteria of functioning. Misdemeanor crimes
are the least likely to trigger a strong effective
response in the lay population, or even among the various workers
involved in the court system. On the other hand, crimes
of domestic violence or felonies would be more likely
to trigger anger and hatred in the mind of outsiders. And the laypeople would have
difficulties to accept the core, more therapeutic approach
as meaningful. Nevertheless, once the philosophy of the court concept has
been understood and accepted, one could very well
argue that violence, that once this basic concept is
accepted, one could very well argue for the incorporation of the felonies among the
accepted criminal activities. For example, people who
exercise violence to others, such act could be part of the
mechanism of defense in the paranoia and therefore resulting
directly from the mental illness of paranoid delusions
with persecutory features. But that is an ongoing debate. It is interesting to note that
in the 2005 study of first and second generation court, four out of the six
first generation court which has been reviewed started
with accepting only misdemeanors and that those four out of the six
have been moving in the direction of accepting felony offenses
and a case by case basis. In the subsidy, the second
generation court, the seven of them which were studied, all of
them showed an acceptance of felony charges for consideration
among their participants. After the mental illness
and the criminal behavior, the offender’s criminal
history is also relevant in considering the
participant’s acceptance. Multiple variations exist in
the acceptance criteria scheme. One of them is whether
the court believes that the causal relationship
must exist between the individual’s mental
illness and the crime committed. And that is one of many issues where the team involved
must have the various legal and mental health professionals
come to an agreement in the selection process. Ultimately, the judge has
the final say over the case, but the court team
approach is unique and essential to the court function.>>A lot of difficulties remain. Two of them that I want to cite
here, the first one is that the after care is essential to
the success of the process. The court intervention and crime
prevention will not be effective short of providing the mentally ill
offender with some form of income, job training, program
activities or living arrangement. Also important, and I would say
essential, is the availability of public funds to
provide additional staff and provide training
for the staff involved. Also some criticism,
which has been voiced, some have criticized the court for
focusing on misdemeanor offenders who would have received a shorter
sentence of jail or probation if not for the court involvement. So this is certainly
relevant to each case. Also, other critics raised
concerned over the possibility that court would coerce people
into treatment as well as the fact that some courts require the
defendant to enter a guilty plea in order to be considered
a candidate by the court. Also, the issue of
infringement and the privacy of treatment information is raised. Finally, among the one I am
quoting today, of concern, the fact that some ineffective
matter of community network, unable to absorb the
number of referrals from the court would
limit the benefits of the whole system
in that jurisdiction. In terms of the outcome, the first
discharge reviews have confirmed a reduced level of criminality
but recidivism still exists. And each new case would have to be
reviewed and for the court to decide if the new crime committed by this
known offender qualified for return in the matter of court or for
more traditional handling. Some studies, although they didn’t
provide me with specific numbers, showed in an urban evaluation
in two New York City courts, a significant reduction
of recidivism. In conclusion, the courts are part
of the new judicial philosophy, where specialized courts have
shown a more comprehensive way to develop justice, keeping in mind
the societal need for rehabilitation of the offenders, as domestic
violence courts or drug courts do. And finally, and I’m very happy
to raise this issue at the Library of Congress, because
that’s an important element of this new concept, data
collection is essential in allowing the revision and
improvement in services delivered to the court, and support
justification of the investment of public funds in the system. Thank you for your patience. [ Applause ]>>Thanks very much for the talk. Now, I’m left wondering,
I know you said something about how participants in the
program are moved into the program, but I’m still left
wondering, my anticipation is that a defense attorney
will council against, even a public defender may council
a participant against participation in the mental health court, because
the sentences, well, treatment, will be longer maybe than otherwise. And the clients themselves may
say well I don’t really want to be in the system that long. And so there must be, it sounds like
there are big due process issues that are hiding behind
that moment where we move from the traditional system
to the mental health court. Can you say more about that?>>Dr. Robert Maman: Yes,
that’s a very good question and that is certainly one of
the issues which was raised when I was involved
in the task force. This was raised by the public
defenders understandably. But there’s also the
philosophy, the acceptance, that those individuals are
misbehaving with criminal activities of all types because they
don’t receive sufficient matter of treatment. And you know, in the same way, that
we would not have any difficulty, any [inaudible] here, to
upset the fact that if we hear about the diabetic who is acting
out, we would all accept the idea that we better give him a shot
of insulin, and unfortunately if we need to rather than let him
be, a due freedom, independence more than you know, it’s a bit fatherly
approach, but it can be certainly, it makes a lot of sense, in
terms of community philosophy. And that debate certainly
goes and voices are expressed from both sides of the aisle. Thank you.>>Dr. Maman, do we know about
what, is there a difference in the age group of these
criminal offenders that are being?>>Dr. Robert Maman: I did
not look into the specifics. It is a very interesting
point, but I was more looking at the global presentation, but I suspect that all age
groups would be involved because those are lifelong
illnesses and therefore misbehavior at any age would be possible if
not almost expected in big numbers. So that’s my response. In terms of, in fact I’ll
go back to the first part, I had an interesting [inaudible], I
was at the forensic annual meeting, and a group from England, I think,
presented a case where this father of three or two kids, you know, developed thoughts
of pedophilic nature. And I don’t recall if he acted on
it, but there was some suspicion, and you know, eventually he was
charged, he received a sentence, but the sentence was
limited, let’s say. The wife of course, left,
divorced, the kids were gone, and then he got a headache. And studies by neurologist
found a tumor in the brain, and they removed the tumor. And then he didn’t have
any pedophilic thoughts and it cleared up. I don’t know how the
process worked, but you know, nevertheless, he was released. The wife came back, the kids
came back, everything was nice. And then a few months later, or
years later, I forgot, this was six or seven years ago at the
convention, he told his wife, honey, I have thoughts about those kids. And then he had another
study, and sure enough, he had the recidivism
of his brain tumor. So, and that’s where the
question is of whether in that case it was accepted
that the behavior was related to an organic pathology,
therefore the control was null or nonexistent form the subject. Then the question is raised if,
do the other offenders suffering from mental illness have much
of a control on their behavior? But you know, it’s such a murky
place, because although, you know, that raises a lot of questions and
the answers could be difficult, costly, and socially
difficult to accept. So that’s a debate going on.>>I was intrigued by your
mentioning that there’s a kind of an activism and almost
a social worker kind of an approach taken by the judge. And of course in the American
system, that’s antithetical to how judges usually are
told to act, and actually act, there’s supposed to be an aloofness
and a distance from the parties. And I’m wondering if
one thinks about that? Have these mental health
courts thought about mediation or using systems that are not
purely in the judicial name, because in a sense it sounds like
we’re really asking our judges, forgive me for using your term
of art, to be schizophrenic, when they’re in a traditional
court to be aloof and distant and not involved with the
parties and when they’re sitting on the bench in a mental health
arena to be paternalistic or parental and all of that. I’m just wondering if some of the
programs have looked at mediation or an alternate way of
assigning potential participants?>>Dr. Robert Maman:
Well, the matter of court without choosing the term of
mediation, are doing that exactly. So that’s why there’s
a need for a consensus, an acceptance that
treatment is needed. So this mediation philosophy
is certainly put into direct application
in the matter of court and that is the reason why the judge of the specific jurisdiction
must express interest in moving or carrying two or three
hats, some maybe more, to do get involved in those cases. And that certainly shows the
acceptance of the paternalistic view that treatment will be more
beneficial than just punishment and leaving these individuals
to their own choices. And being in the medical field,
I am not offended by the concept, but I can understand the legal
minds can have some difficulties.>>Hi, thank you. How are the HIPPA protections,
HIPPA laws? If the court record
is public record, how are the HIPPA protections
secured for these participants?>>Dr. Robert Maman: I
do not have the answer, but certainly the question,
the issue has been raised and is relevant to be looked
at, and unfortunately, I didn’t go on that side of the
problem, but that’s one of many of which have to be, you know,
cooked into this rather new process. We talk about less than,
barely more than 20 years. But that’s also a major element
which has to be looked at and taken into consideration.>>Question over here?>>No.>>Anymore? No. [ Background Noise ]>>Hello. So we’ve talked a little
bit about the rights of someone with a mental illness as either
an unusual or cruel punishment, but are there any other
rights for people as, people who have a mental illness
but got classified as a disability that you’ve considered,
or you’ve looked at, or you’ve had to work
with specifically?>>Dr. Robert Maman: I’m
sorry, I didn’t hear that.>>Oh, sure. So we talked a little bit about, so
the ethics behind ruling on someone with a mental illness,
but have you talked about or researched a mental illness as a
disability and looked at the ethics and constitutionality behind that? So looking at mental
illness as a disability.>>Dr. Robert Maman: We
are, my understanding, is that the disability resulting from mental illness does
not make you incompetent in the eyes of the court. So if you’re competent
of your behavior, regardless of your disability,
then you are a defendant who has to face the charges
filed against you. So I think the disability would
be irrelevant after the resolution of the legal question and
that’s how I understand it. Now, when disabilities, of which
there is a level of incompetence, then the traditional
court have handled that with a defendant attorney
pleading NCR and the patient going for a forensic evaluation as
to ability to withstand trial, or competency to, or responsibility
of the criminal behavior. So those elements, those avenues
are already in the system. So that’s just an additional one
which doesn’t go to the assessment to the incompetence as far as
incompetence standing, statutes. [ Background Noise ]>>What about people
with disabilities that don’t have a mental illness? People that are deaf, for instance? How will they be treated?>>Dr. Robert Maman: I think
that’s a very good question, it’s a very good and
very interesting issue, and the [inaudible] to the
question and to the issue, but not to that I’ve
explored at this time. But certainly relevant to the
topic and interesting to look at.>>Thank you.>>Roberta I. Shaffer: Dr. Maman, thank you
so much for giving us a bit of a different approach to
celebrating Constitution Day. I hope everyone has now
come away with the idea that it is not only the Supreme
Court, but it is other courts, that are actually fully responsible
for maintaining our rights within the Constitutional framework,
and that I think the intent of marrying Constitution Day
with Citizenship Day was in fact to make sure that every
citizen assumes his or her role in protecting the Constitution,
not just the court’s, and certainly not just the highest
court which inspires us here today, but is not the only way that the
Constitution continues to live and have relevance to everyday life. Thank you so much for participating. We have some gifts for Dr. Maman. Okay. Both of these? So he’s getting a gift as a lawyer
and a gift as a doctor, I suppose. [ Laughter ] [ Applause ]>>Thank you.>>Dr. Robert Maman: Thank you. I will gladly come back if you want.>>Roberta I. Shaffer: And please now join us for
a reception at the back of the room, and if you are able, at two o’clock,
please join us in The Law Library which is the Madison
Building, room 201, for a showing of the
film Last Day of Freedom. I think it has enormous
relevance to a number of topics that were touched upon today and
it is in fact just a beautiful but difficult documentary. So thank you for being here today, go out and celebrate the
Constitution today and every day and please join us for the
reception at the back of the room. Thank you Dr. Maman.>>This has been a presentation
of The Library of Congress. Visit us at

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