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Ending Disparities and Achieving Justice for Individuals with Mental Disabilities.

The intersection of crime and mental disabilities is a topic of intense public scrutiny and concern. It is well known that the widespread closure of psychiatric hospitals led to an increase in the arrest and incarceration of individuals with mental illness. Nationally, as the number of state hospital beds that remain open "has fallen to its lowest level on record, … mentally ill individuals inside and outside the criminal justice system" compete for scarce resources in "a bed shell game with life-and-death implications." Against this backdrop, attorneys who practice in New York encounter statutory schemes governing the adjudication and retention of incapacitated defendants and those determined to not be responsible because of "mental disease or defect" that are confounding even to the most experienced counsel. Acquiring proficiency in this discrete area of law must be coupled with awareness that defendants with mental disabilities invariably confront widespread societal prejudices, myths, and stereotypes regarding their circumstances, such as that those who invoke mental status defenses are malingering or inherently dangerous. "The [American] public's outrage [in 1981] over a jurisprudential system that could allow a defendant who shot an American President on national television to plead 'not guilty' became a 'river of fury' after the jury’s verdict was announced." The conditional release of John Hinckley from St. Elizabeth's Hospital on September 10, 2016, thirty-five years after he shot former President Ronald Regan and three others, is a watershed moment that has caused renewed public criticism of the insanity defense. Criminal defendants with mental disabilities have been "deprived of treatment, discriminated against, [and] mistreated." They have also been subjected to over-punishment because of the harms they endure while incarcerated. The common view that dangerous propensities are associated with mental illness and that future risk can be predicted is not evidence-based. This article will review the nature of mental disabilities and their prevalence in the criminal justice system, and will introduce fundamental concepts regarding the defense of individuals with mental disabilities. New York State statutes governing the retention, care, and treatment of incapacitated defendants and those found not guilty by reason of insanity will be explored in depth along with proposals for chapter amendments to this state's Criminal Procedure Law. Theory and practice are examined together toward the goal of ending disparities in outcomes for individuals with mental disabilities in the criminal justice system. This article’s conclusion is that miscarriages of justice for those with mental disabilities can be avoided by reform of statutory schemes, education of the bench and bar regarding the nature and consequences of mental disabilities, and by embracing concepts of therapeutic justice not yet integrated into our criminal justice system.