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You Be the Judge: Mental Illness and the Judicial System

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I rarely give thought to certain professions. In my career as a psychologist, I’ve accepted certain professions with a face value that has been based on my history of working with them and I’ll admit, with some stereotyped biases.

I’ve seen attorneys chatting amiably about a barbecue they are planning together the following weekend, and then launch into vicious, sometimes personal attacks during a proceeding. After which, they walk out the best of friends. I’ve learned that much of the courtroom dramatics are just a show designed to persuade the judge and jury. Those directly involved in the scene feel a lot more emotion than the lawyers.

My assessment of this practice is that it is self-protective for the lawyers in a way that is similar to what a clinical psychologist must do. If you become emotionally involved in every case then you lose the objectivity necessary to be good at your job and stay sane. Therefore, while I can appreciate lawyer jokes, I also understand the reasons behind their behavior. For them, it’s about winning, not about you or your case. I don’t even think it’s always about money. I think winning is paramount to an attorney.

So, what happens when an attorney becomes a judge? Essentially, he always wins because he has the final say in any argument. For the purposes of this opinion piece, I will not address the entire appeals process, but if winning is everything and a judge has the last word, is there any oversight when a judge begins making poor judgments?

I have to interact with judges on a regular basis and never really considered the process. I just accepted that a judge’s decree is final. Several recent events have given me pause to ask, “When did judges become so powerful?”

This story is what got me thinking about judges: When a cell phone rang in Judge Robert Restaino’s Niagara Falls City Courtroom in March 2005, he asked the owner of the phone to come forward. When no one stepped up, he jailed the 46 defendants in the courtroom. He raised the bails he had already set that day and set bail for those he had previously released on their own recognizance. He released them a few hours later.

On Wednesday, November 28, 2007 (more than two and a half years later), he was removed from the bench. He plans on appealing based on having been under some personal stress at the time. I believe he is allowed to continue on the bench until his appeal is heard.

I’m sure we’ve all heard anecdotal stories about judges who wax poetic when they are making their decisions because they have a captive audience. We’ve heard about strange requests that judges make and, of course, we hear the sensational stories as noted above. What we don’t hear about very often is how judges really do have tremendous power in the lives of others. In the case above, Judge Restaino cost the defendants a few hours of time and some money, but in the world in which I live, judges cost people years of their lives.

I work with people who have been acquitted Not Guilty by Reason of Insanity (NGRI) and who are ready for release into the community. An NGRI status means that someone was so ill at the time of the offense that he/she was acquitted of the crime. Many people think this enables the acquittee to walk freely away. Not in Virginia.

Without going in depth about the system, suffice it to say that once you have been committed to a mental hospital for the crime, you have a long hard road and many hoops to jump through before you are released. Virginia’s graduated release system for NGRI acquittees is better than many other states in which I have worked. The process is designed for the safety of the public at large.

Generally speaking, when the hospital team thinks the acquittee is capable of following the dictates of a conditional release plan, they give that person passes to where he/she will be living over a period of several months to reintroduce them to their community and see how they handle increasing freedom.

When the hospital team believes the person is able to leave the hospital, they have to request permission from the state’s Forensic Review Panel. If this panel agrees, the court generally issues a request for that person to be seen by two more independent practitioners to determine if they agree with the suggested conditional release plan. By the time this request gets to court, probably twelve forensic expert practitioners have said this person is capable of following the requirements of his or her conditional release plan and is ready for discharge.

Nonetheless, I’ve seen and heard of judges who dismiss the expert witnesses’ testimony and recommit that person to the hospital. Sometimes the reasons are apparent: a protest from the victim’s family, politics, the story made the news when the offense happened and there will be public outcry if the person is released, or the judge did not understand mental illness and was afraid to release the acquittee. Are these reasons sound?

What are the ramifications when a judge loses his objectivity and makes poor judgments? A person who is acquitted is not guilty. Period. The only thing holding that person in the hospital is his or her mental illness. Once that is under control and the experts think he should be released, why is the judge allowed to have an opinion on the matter?

I thought the role of a judge was to weigh the evidence presented and make a determination rather than to put his or her own bias or community pressure into the decision. I do sympathize with the victims’ families, but it seems punitive to people with mental illness that they have to serve more time than if they were actually convicted of the crime.

Most people know that if you are sentenced to a certain amount of jail/prison time, you can be released in half that time for “good behavior.” Not so when you’re mentally ill and acquitted. I am only referring here to the cases where all the experts agree that a person should be released. When experts disagree, the process typically works as it should.

I’ve seen acquittees go in front of their judge year after year after year, with all experts saying the person is stable and ready for conditional release, but the judge decides they should stay in the hospital. I’ve heard that some judges come out of retirement in order to hear an acquittees’ case just so that they can deny the conditional release.

To be fair, I have also witnessed some judges who rightly say to the acquittee, “I don’t like this, I’m never going to be comfortable releasing you, but the experts say that you’re okay, you have done everything requested of you while hospitalized and I have to trust the experts.” This is the way it is supposed to work.

Where is the oversight on the cases where the judge keeps them in for his or her personal reasons or due to political/community pressure? This isn’t justice; it is punishing the person for having a mental illness. We aren’t talking about a slow cashier at Wal-Mart, or the CEO of a business having a bad day. We’re talking about a job where your decisions are, for the most part, final.

My colleagues and I enter some courtrooms knowing we are testifying in vain. There is nothing we are able to say to convince some judges that the acquittee is stable and ready to be released. Some judges refuse to be educated about mental illness.

The many, many stories about Judge Restaino use phrases like, “he snapped” and “he was under stress in his personal life” or that it was “two hours of viral lunacy.” However, while the decision about his future is under deliberation and appeal, he continues judging others.

NGRI acquittees are entitled to the same consideration. The crime was committed during a period of instability. If the experts are recommending conditional release, the acquittee is as stable as can be expected. A conscientious practitioner would never recommend conditional release if he/she thought there was any danger from the client in the foreseeable future. Even if they did, the safety net in place in Virginia ensures that multiple experts must agree before it even reaches a courtroom.

Somehow, we have accepted the decisions of judges for years by not questioning their power and by not demanding that there is a safety net to protect us. Moreover, the mentally ill and their families have accepted these decisions. When asked, my clients say, “That’s just the way it is, judges control your life.”

I went from not thinking about judges at all to thinking about how much they control – from the lives and futures of NGRI acquittees to traffic tickets. Is it right that any one person has so much uncontested power and authority when we know they are not immune to personal stressors and personal biases that might make their judgments unsound? Since they are in control of so much, shouldn’t there be a panel of judges deciding major issues, rather than just one?

You be the judge.

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About Alexandria Jackson

  • Having struggled with depression, anxiety, and possibly Asperger’s syndrome, I am very sympathetic for those with a mental illness. People simply do not understand what is going on in a mentally ill person’s head. There have been moments where I have felt insane because I felt so horribly misunderstood and in such control by the state.

    I would really like to visit other countries and see how these problems are handled. “Lunacy” and “madness”, to me, seems to be linked many times to titanic amounts of genius.


  • Colin,
    I agree that no one understand what is going on inside someone struggling with a mental illness….not even another person with a mental illness. I have never seen two people suffering with the exact same feelings/emotions. However, some tell me they find comfort in support groups. As to genius, well, I couldn’t agree with you more. I’ve seen brilliant artists (musicians, painters, writers, mathmeticians, etc) that few would recognize as mentally ill.
    Best wishes,

  • Perkins

    Your right in many ways. I was ill for many years and finally got out of it the hard way.