Sentencing Orders and Diversion Programs

Not to be snarky, but I think this tidbit from Amen Clinic is dead on the money:

"Psychiatrists are the only medical specialists who rarely look at the organ they treat. Psychiatrists continue to make diagnoses the same way they did 100 years ago, based on clinical exams and symptom clusters. There is a better way. SPECT imaging is a clinically useful way to look at brain function." 18 Ways that SPECT can Help You

We see this in Florida Criminal Law on a regular basis. Uniformed prosecutors, criminal defense lawyers and judges do not understand that the brain is the hardware and mind is the software. Florida Criminal Law has attempted to inch forward into the 21st century with first offender and other diversion programs such as Drug Court, Mental Health Court, and Veteran's Court. Yet these programs - and others - are quite frankly, an intellectual embarrassment. We need a change that is not incremental, but one on an order of magnitude. We need to put the money in the system up front and get the most accurate diagnostic evaluations possible, and that means the use of imaging technologies such as SPECT.

Each of these diversion programs essentially use outdated technology. Sure, they are better than expensive, harsh, incarcerative sentences, yet they usually fail in the long run. Why? They don't look at the organ sought to be treated. 

Florida Criminal Law revolves around discovery - the process of learning about the other side's case in the form of reports, witness lists, depositions, examination of physical evidence and more. Yet when it comes to diversion programs and sentencing orders designed to treat the bodily organ responsible for some of the most dangerous and damaging behaviors which are reasonably foreseeable to recur, we rely on guesswork. This is especially true for Mental Health Court, Veteran's Court, Drug Court and sentencing conditions such as Anger Management and Domestic Violence Intervention Programs. How bad can it get? A war veteran tried and convicted of quadruple homicide when he was making an obvious cry for help for several years. Four innocent people dead, including three children, and the taxpayers literally pay millions of dollars for the sentence imposed. 

For clarity, let me add this disclaimer: Not everyone needs treatment nor a SPECT scan. Yet many do, and guesswork in the place of discovery would often be a ground for a Rule 3.850 Ineffective Assistance of Counsel motion. Yet our laws, rules, procedures, sentencing protocols, treatment diagnostics and basic problem solving skills as lawyers and judges are simply tossed out of the window of common sense.  Our legal test for insanity is from the 1830's. 

Finally, there will be the doubters who question the technology or the approach, and even more who will complain about the cost. Yet these are often the same people calling for more and more prison time without mention of the cost to the taxpayers. Cost is not the excuse, cost is the biggest reason. Inadequately funding diversion programs is foolish, funding them for accurate diagnostics and verifiable treatment results just makes good fiscal sense.

The Smoking Gun

For several years now, I have been asserting that there is a definitive link between mental illness and crime. To recap, repeat offender crime is caused by one of two factors:

1) A small number of repeat offenders have a personality disorder. Think of this as a willful desire to break the law due to bad character.

2) A large number of repeat offenders have mental illnesses that do not qualify for an insanity defense under Florida law, yet affect their behavior and cause criminal behavior.

This second view is very controversial: If criminals are simply “bad characters,” it would justify increasingly harsh punishment. Incarceration would then serve the dual purposes of protection of the public and retribution However, if some criminal are bad characters and others are not, we have a problem: Harsh punishments will not deter the mentally ill, and retribution becomes and act of cruelty.

The Bureau of Justice Statistics Special Report published in September of 2006 exposes the level of cruelty - and ignorance – prevalent in our society. While most of the public thinks that harsher punishment is the solution to the social problem of crime – to “teach them a lesson” and other such nonsense, the reality is that we are behaving like prisoners who hurt others without remorse: Our society is quite bluntly put, cruel.

• 45% of federal prisoners have mental health problems.
• 56% of state prisoners have mental health problems.
• 64% of local jail inmates have mental health problems.

This stunning document was produced by the United States government’s own Bureau of Justice, not some “bleeding heart” group. They used professionally accepted definitions and standards:

“Symptoms of a mental disorder were based on criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV).” - Bureau of Justice Statistics Special Report, page 1, September 2006.

One final thought: The incidence of mental illness was probably understated because many facilities and many inmates refused to participate.

How to Solve the Problem of Crime

Here is a cost neutral way to solve the social problem of crime.

When a criminal defendant is arrested, they are usually held until they see a First Appearance judge within 24 hours of arrest. At First Appearance, the judge will often determine bond issues.

First Appearance is often a criminal defendant’s first contact with the judicial system, their first contact with someone empowered to solve the problem of crime. First Appearance judges can:

1. Learn the patterns of mental illness that fly below the radar. Substance abuse is an obvious red flag. Driving on a suspended license isn’t, but should be.

2. Order a Diagnostic Psychological Evaluation as a condition of bond. Do not order cookie cutter treatment such as Batterer’s Intervention Program, Anger Management, AA or NA. Diagnosis first, treatment second.

3. Impose a condition that the defendant follow through with treatment as recommended while the case is pending. A limited medical release can be required for the purpose of ensuring compliance with this condition of bond.

The key to effective intervention is diagnosis first. The failure to properly diagnose criminal defendants is why Drug Court, Shoplifters anonymous, court ordered AA/NA and Anger Management counseling programs are statistical failures: The wrong treatment is often worse than no treatment at all.

A proper diagnostic evaluation is not a fifteen minute question and answer session with a counselor with a bachelor’s degree. Such a drive through diagnostic session is a waste of the counselor’s and the patient’s time. Yet this is exactly how most court ordered programs operate.

The best practice is one of two methods of diagnosis:

1. Medicine: A SPECT brain scan by a well-trained psychiatrist, such as those at Amen Clinic. However, it is too expensive for a judge to impose it as a condition of bond. As the technology becomes more available, that will change. A full imaging and follow through will cost around $4,000.00.

2. Psychology: A Mental Status Exam coupled with Advanced Psychometric Testing, such as the MMPI-II and the MCM-III. A full battery of tests can be done for about $750.00 – well within the means of most who want to get out of jail.

A diagnostic evaluation and follow through treatment is not with the means of every single criminal defendant. However, it is within the means of most. After all, the courts have been imposing treatment without adequate diagnosis for years.

Just look at well that system has worked.

Respectfully submitted,

Stephen G. Cobb
CobbLawFirm.com