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To Plead or Not to Plead?

In Arizona, mentally ill defendants tend go down one of two different paths. Neither path is very appealing, as the system simply isn’t equipped to deal with people suffering from serious mental illness.

The first path involves Arizona’s defense of “guilty except insane.” I have never practiced in another state, but I can’t imagine a tougher, more restrictive approach to dealing with defendants whose actions were a result of their mental illness.

To get a finding of guilty except insane, the defendant’s problem must be “severe” and prevent him from discerning right from wrong. We aren’t talking about your normal severe mental illness either. Anything that’s momentary, temporary, or arising from the pressure of the circumstances doesn’t count. Neither does moral decadence, depravity, or passion growing out of anger, jealousy, revenge, hatred or any other motives that may be present in a person who does not suffer from a mental disease or defect. Nothing resulting from acute voluntary intoxication or withdrawal from drugs or alcohol, character defects, psychosexual disorders, or impulse control disorders is going to fly.

Assuming he or she has a qualifying mental disease, a defendant must prove his insanity by “clear and convincing evidence” On top of that, if a defendant is found guilty except insane, he or she will most likely be sentenced to a presumptive prison term anyway, though he or she will serve it in a state mental health hospital instead of in the department of corrections .

There’s very little reason for a mentally ill defendant to use a guilty except insane “defense” in Arizona, as the best case scenario could result in a term of commitment greater than what the person might have served had he or she simply pled guilty to all charges. Sadly, the other path Arizona’s mentally ill defendant’s can take is not much better.

The second path involves determining whether a mentally ill defendant is fit to stand trial. Like with a guilty except insane finding, although I have never practiced in another state, I can’t imagine a tougher, more restrictive approach to dealing with incompetent defendants.

Rule 11 of our rules of criminal procedure covers competency to stand trial, so lawyers usually refer to competency proceedings using the name of the rule. If I have concerns about the competence of a client, I simply request a Rule 11 evaluation. The issue is going to boil down to whether the defendant is able to understand the nature of the prosecution and assist in preparing his or her defense.

The most superficial, childlike statements often satisfy Arizona’s standards. When asked about the rolls of defense counsel, prosecutor and judge, one of my clients said “the prosecutor puts me in jail, Matt gets me out of jail, and the judge wears a robe.” Totally competent, according to the court.

If a defendant is found competent, the time they spent getting evaluated is waived. That means they can be forced to wait longer for trial, even if they are in custody, because their lawyer requested an evaluation.

If someone is found incompetent, they aren’t released. In some instances, the state agrees to drop the charges, but that isn’t the norm. Typically, the next step is based on the likelihood of restoration, as the court must also decide if the defendant is restorable to competence within the statutory period. If they aren’t, the state will usually file for civil commitment. If they are, they get to participate in a restoration program. When they’re done with the program, which can last a while, they get sent right back to the trial court level, where adjudication resumes.

As you can probably see, Arizona’s system is a trap for the mentally ill. If they’re in custody, they almost always stay in custody much longer than they would if they did not have mental health problems. There is rarely any real benefit for someone who is mentally ill to proceed with competency proceedings or try to obtain a verdict of guilty except insane.

I’ve had a few cases where the previous lawyer had filed a Rule 11 evaluation for an in-custody client, and the matter was set for review of competency. When I got the file, I saw that the person had a plea offer to probation with no additional jail and was in on a bond of a few hundred dollars, which they couldn’t post because they were homeless and mentally ill. The reports came back saying incompetent but restorable, so the client had to hang around jail for months to get restored and kicked right back to the trial court, where they may or may not have still had the probation offer they could have accepted months earlier if they weren’t mentally ill.

It doesn’t seem right filing a rule 11 motion knowing that in all likelihood the client might spend half a year in jail just to get right back to the point in the case where they were the day you filed for the competency evaluation. Unsurprisingly, most mentally ill clients won’t appreciate it when you tell them they should be happy because they were previously incompetent and you’ve protected their rights by making sure they spent lots of time in jail getting restored.

It’s not right to plead out an incompetent client either. The reality is that, when pleading means getting out and competency means staying in, they all want to plead.

Great system, eh?

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