The New Prisons: the Use of Psychiatric Confinement and Outpatient Commitment Orders, as Punishment

Arthur Baer, J.D., and Dennis Feld, J.D.

Persons found incapacitated to stand trial, or not guilty because of mental disease or defect, or those who have been convicted, and are subject to post conviction orders of commitment face indeterminate forms of commitment or supervision that may be as or more onerous than criminal forms of commitment or supervision and therefore affect a form of punishment. We will be exploring what can be done to prevent or challenge the use of civil orders for what in substance may be punishment, and the enlistment of treatment teams as part of the prosecution.

Full workshop outline syllabus is below.

Syllabus: The New Prisons: the Use of Psychiatric Confinement and Outpatient Commitment Orders, as Punishment

I. Background

Much has recently been written about the use of the Prisons as the New Asylum. Little has been written about the use of asylums and outpatient commitment orders (in various forms), as the new prisons and the new parole, used for indeterminate surveillance, social control, and effectively imposing a form of punishment without conviction.

The deprivations of liberty that result are often greater, as such orders may be issued and continued indeterminately, while a sentences conclude after a time certain. The procedural and substantive standards and protections, however, are lower. The elision of civil orders of commitment (both inpatient and outpatient) with criminal orders of commitment and supervision, has eroded the line separating civil from criminal proceedings.

The civil/criminal distinction not only determines the confinement or supervision is constitutionally prohibited as a repetitive punishment, but is also whether the considerably stronger constellation of protections afforded under the criminal law, or the considerably weaker array of protections afforded in civil proceedings, must be followed. At issue are the applicability of such rights as the privilege against self incrimination, speedy trial, state financed expert witnesses, and the like.

The nature of the civil and criminal proceedings are fundamentally different. For example, while evidence of general propensity evidence to commit future dangerous acts is generally excluded from criminal trails, because of its inherently prejudicial nature, such evidence is the very focus of a civil commitment proceedings. Without these rights, and given this focus, the task of proving the requisites for civil commitments, commitments potentially for life, is substantially easier to sustain, and deprivations of liberty concomitantly more likely to result.

"[D]angerousness" is a many splendored thing. Unless muzzled by discriminating analysis, it is likely to weigh against nominally competing considerations the way a wolf weighs against the sheep in the same scales: even if the sheep is heavier when weighed separately, somehow the wolf always prevails when the two are weighed together."

Covington v. Harris, 419 F. 2d 617, 627 (D.C. Cir. 1969) (Bazelon, J.)

It is consequently critical to prevent the further evisceration of this balance, and ensure that the psychiatric system in not used to affect indeterminate punishment in the guise of treatment.

II. Objectives

We will explore these issues using three examples. The first involves, the defendant’s right to be fully informed of the consequences of accepting a plea of not guilty by reason of insanity, the defense attorney’s responsibility to fully advise their clients of those consequences, what can be done if a defendant has not been so advised and counsel has provided ineffective assistance in the plea process, and the responsibility of defense attorney to also advise their clients of the consequences of any possible civil orders of confinement and supervision, that may result after taking a plea, and what can be done, if counsel has provided ineffective assistance in protecting the defendant’s liberty.

The second examples will explore the use of relief issued under Jackson v Indiana to affect a form of punishment. We will consider the validity of orders issued after a finding that a defendant is unlikely to regain the capacity to assist in his own defense, and even if the defendant is likely, he is not making progress toward that goal, and thus, relief under Jackson v. Indiana must be granted, and the defendant must either be released or committed using generally applicable civil commitment procedures. Among the issues to be addressed are the extent of a district attorney’s access, post Jackson, to medical records, treatment providers, residence change and other information; whether further restrictions or obligations may be imposed on such persons, although never convicted, because of the pending indictment; when and how may the criminal case be re-calendared; and the fifth amendment rights of defendants.

We will also explore the use of Jackson relief to extinguish State created rights to liberty; thereby maintaining the pendency of indictments and allowing onerous orders to be imposed indeterminately, affecting in substance a form of parole and punishment.

Finally, we will explore conditions issues in Sex Offender Civil Commitment proceedings that are more onerous than parole conditions, and the validity of such conditions.

After an initial presentation using case examples and possible approaches; the workshop will invite participants to share ideas about possible strategies to advocate on behalf of defendants in the above circumstances. Among the areas we will cover are:

III. Legal and Advocacy Strategies A. Challenging ineffective assistance of counsel in accepting not responsible pleas.

  1. Assessing the information provided to the defendant facing the choice of a not responsible plea.
  2. Assessing whether the plea was knowing and voluntary.
  3. Assessing whether defense counsel met his or her obligation to inform the defendant of such consequences of a not responsible plea.
  4. Assessing whether there was a sufficient allocution when the plea was made and accepted in court.
  5. Making motions to vacate a plea based on ineffective assistance of counsel.
  6. Assessing whether defense counsel met his or her obligation to inform the defendant of possible civil orders of commitment, and whether the defense counsel appropriately defended the defendant’s rights thereto.
  7. Making motions to vacate such civil commitment orders based on ineffective assistance of counsel

B. Challenging the overreach of orders issued upon relief granted under Jackson v. Indiana

  1. Challenging orders based on violations or privacy under the first amendment.
  2. Challenging orders based statutory privilege.
  3. Challenging orders based on violations of HIPPA.
  4. Challenging orders based on violations of civil procedure
  5. Challenging orders based on violations of state liberty interests.

C. Challenging orders to impose outpatient conditions.

  1. Challenging outpatient conditions based on their constitutionality, overbreadth and relevancy

IV. Learning Goals:

  • Developing Effective Legal Strategies - Understanding the Possibilities for Use of New Legal Approaches
  • Developing Effective Advocacy Strategies - Understanding the Possibilities for Use of New Advocacy Strategies
  • Brainstorming to Begin to Develop an Outline of Long Term Strategies to Confront Use of Civil Commitment Orders to effect punishment.

This workshop with explore these issues using examples from practice.