September 26, 2009 in City

Paul escape sparks debate

Officials want change in insanity defense
By and The Spokesman-Review
 
The Spokesman-Review photo

The escape of Eastern State Hospital patient Phillip Paul has some authorities advocating changes in Washington state laws.
(Full-size photo)

The escape of a paranoid schizophrenic killer while on a field trip to the Spokane County Interstate Fair has reignited a long-smoldering conflict between advocates of two basic American principles: justice for criminals and compassion for the mentally ill.

During the three days it took to find and recapture Phillip Paul earlier this month, state officials were hard-pressed to respond to public outrage over allowing a man who brutally killed an elderly woman but was found not guilty by reason of insanity to participate in an outing with 30 other criminally committed mental patients.

On Sept. 18, barely 24 hours after Paul had gone missing, Susan Dreyfus, secretary of the state Department of Social and Health Services, said “a larger policy discussion was appropriate” about whether there should be an alternative sentence under Washington law.

“In some states, they’ve gone to guilty, but not responsible,” Dreyfus said. “What that would mean for Mr. Paul is if he was making progress, instead of being released into the community, he would be released into the custody of the Department of Corrections, presumably to serve out his term.”

Her thoughts on changing Washington law to allow an optional criminal verdict of “guilty but mentally ill” were echoed by Gov. Chris Gregoire.

“It tees up the major issue about whether we should allow in this state, not guilty by reason of insanity as a plea, or whether we should have a plea that is guilty by reason of insanity,” Gregoire told a Seattle television news crew last week.

State Sen. Mike Carrell, R-Lakewood, quickly pounced on Gregoire’s words to support a measure he had introduced in the last session “aimed at diverting the criminally insane away from state mental hospitals and into prisons.”

Carrell said his measure would not replace the “not guilty by reason of insanity” plea but create something between it and a plea of “guilty.”

The not guilty by reason of insanity defense has been a part of English law for 1,000 years and adopted by the American legal system. It has always been controversial with the American public, and critics decry its use as allowing criminals to “get off easy.”

The statewide public outcry over Paul’s escape mirrors the national uproar 27 years ago when a jury found John Hinckley Jr., not guilty by reason of insanity in the shooting of President Ronald Reagan.

In the wake of that acquittal, 20 states limited use of the insanity defense, and Congress passed the Insanity Defense Reform Act of 1984 that shifted the burden of proof to the defendant.

Until recent years with the discovery and use of more powerful psychotropic drugs, people deemed not guilty by reason of insanity spent longer time in confinement at mental hospitals than criminals convicted of similar crimes and sent to prison, according to Drs. John D. Melville and David Naimark, who wrote an analysis and commentary piece for the Journal of the American Academy of Psychiatry and the Law.

They contend that giving jurors the option of finding the accused guilty by reason of mental illness is both confusing and deceiving.

Jurors comprehend perhaps 50 percent of jury instructions regarding insanity in the first place. Giving them access to a “short-cut” verdict, Melville and Naimark wrote, allows jurors to avoid “the difficult moral and social issues raised by an insanity defense.”

Despite the notoriety of cases involving the insanity defense, the plea is invoked in less than 1 percent of felony cases and is successful in only a fraction of those cases. Three states – Montana, Idaho and Utah – do not allow an insanity defense. Only 14 states permit guilty but mentally ill as an alternative to not guilty by reason of insanity.

While largely supportive of an alternative verdict, Spokane County Sheriff Ozzie Knezovich warned of reacting too hastily to the Paul incident.

“One of my biggest concerns is we have a major knee-jerk reaction to the situation and make things worse,” Knezovich said.

State Rep. Timm Ormsby, D-Spokane, shares those concerns. As a member of the House Judiciary Committee, he has yet to discuss and review possible changes to the state’s insanity defense laws with other legislators.

He said he reacted to the news of Paul’s escape like many Spokane residents. “Just shocked it happened. And a little upset,” he said.

“Let’s see what the investigation finds,” Ormsby said, “listen to experts and others about what can and should be done.”

There are about 150 people committed to state hospitals who fall into the dangerous and criminally insane category, said Eldon Vail, secretary of the Washington State Department of Corrections.

“We at Corrections would never be able to touch them,” Vail said.

If state law changes allowed the criminally insane to be treated and incarcerated at prisons, Vail predicted it would average about 16 people per year.

The state’s 15 prisons could handle the change, he said, with added funding to ensure proper care is delivered.

About 20 percent – or about 3,600 of the 18,000 inmates – in Washington prisons suffer from mental illness, he said. Most are confined within a 400-bed mental health hospital at the state’s largest prison in Monroe.

It was Knezovich’s detectives in the Spokane Valley Police Department who found and captured Paul in rural Klickitat County on Sept. 20. Paul carried a backpack holding extra clothes, food and a scythe.

Knezovich pointed out that Paul was not committed to the mental hospital for life for the 1987 killing of a Sunnyside, Wash., neighbor. Paul said voices in his head told him she was a witch.

Paul escaped from Eastern State Hospital in 1990. He attacked and injured a deputy after he was captured.

He had since been conditionally released back into the community for a time. Then earlier this month a Yakima County Superior Court judge revoked Paul’s conditional release. He was allowed to go on the field trip to the fair anyway.

“You’re looking at someone who was committed for first-degree murder and not taking his medications,” Knezovich said.

“If he was found guilty, he would still be receiving psychiatric help through the Department of Corrections system rather than the mental health system, but treated according to the crime he committed.”

King County Prosecuting Attorney Daniel Satterberg, whose office coordinated a major study of dangerous mentally ill offenders last year, supports the guilty-but-mentally-ill option.

“It strikes a balance,” Satterberg said, “between providing treatment to people who are mentally ill and also providing public safety to the rest of us.”

The Paul case, he said, reveals the separate goals of mental health and criminal justice systems.

“What the case highlights is that when somebody is found not guilty by reason of insanity, even if they have unquestionably committed a homicide, they are pretty much treated like a medical patient in the medical health system,” Satterberg said. In the criminal justice system, public safety is paramount.

“You cannot eliminate legally the not guilty by reason of insanity,” Satterberg said. “It is a principle of law a defendant has a right to argue, but the states that have created the guilty-but-mentally-ill option allow their prosecutors to argue and their juries to find, that, yes, mental illness was a factor here but we are not going to excuse the behavior and treat it solely as a medical issue.”

Public defenders oppose the alternative to Washington’s not guilty by reason of insanity, which they say is already a tough standard to meet.

In a response to Satterberg’s study of the dangerously mentally ill, V. David Hocraffer, of the King County Office of Public Defender, wrote that “a better solution is to consider expanding the Washington definition of insanity,” allowing more mentally ill defendants to qualify for appropriate treatment and hospitalization.”

Spokane County Public Defender John Rodgers concurred. The number of people in state prisons with mental illness is profound, but they don’t get any relief under the law.

“We have one of the stricter standards in the country already,” Rodgers said. “To be found not guilty by reason of insanity, the jury has to find that you actually committed the act. It’s not the same as guilty, but it is pretty equivalent. You could be committed to a mental hospital for a period of time equal to what you could have gone to prison for.”

The American Psychiatric Association does not a have a specific position on verdicts of guilty but mentally ill, “although to the extent that they undercut the appropriate use of not-guilty-by-reason-of-insanity defenses, they certainly would be problematic,” said Dr. Paul Applebaum, professor of psychiatry at Columbia University in New York and a past president of the APA.

However, Applebaum, a member of the Council on Psychiatry and the Law, has his own views on the issue.

“Guilty-but-mentally-ill verdicts are essentially a sham,” he said. “They, in their practical implications, really do not differ from simply finding somebody guilty.

“If a person is found guilty but needs psychiatric treatment, in every state that prisoner can be transferred to a treatment facility until they’re stable and then sent back to prison.”

When the guilty-but-mentally-ill verdict is proposed, Applebaum said, “it’s in the belief that it will trick juries into finding people guilty but insane whom they otherwise would have found not guilty by reason of insanity, and therefore will end up punishing more people and treating fewer of them.”

He cited decisions in two state supreme courts – South Carolina and Indiana – which upheld the imposition of the death penalty on defendants found guilty but mentally ill.

“If you needed a clearer demonstration of the fact that there really is no difference between being found guilty and being found guilty but mentally ill, I think that should do it for you,” Applebaum said.

Satterberg, however, cited two recent King County cases in which murder defendants found not guilty by reason of insanity were released back into the community within five years of being committed to Western State Hospital.

By contrast, the average sentence in Washington State for someone convicted of first-degree murder is about 26 years, he said.

“It used to be that we could reassure a victim’s family in a murder case that the defendant would spend as much time locked up in a psychiatric hospital as they would in prison,” Satterberg said. Because of advances in treatments and therapeutic medications, “We can’t do that anymore.”


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