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Recommendations for Implementation
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a.
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Ensure that defense counsel can identify the mental health status of their clients as soon as possible after appointment.
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The American Bar Association Standards Relating to
Providing Defense Services state,
"Counsel should be provided to the accused as soon as feasible and,
in any event, after custody begins, at appearance before a committing
magistrate, or when charges are filed, whichever occurs earliest." One of the first actions of defense counsel
after appointment should be to identify those clients with severe mental
illness. This can be done by
interviewing the defendant, and reviewing the police report and the information
obtained by the pretrial services program.
At least one state, Georgia, has a statute that allows defense attorneys
access to state mental health records with the consent of the client.
It can also be done by listening to family members or
others who may be in a position to provide useful information about the mental
health status of the client. Attorneys
should be careful, however, not to divulge information about a client's mental
health status to any of these parties without first obtaining the consent of
the client.
Example:
Public Defender's Office, Hamilton County (OH)
In Hamilton County, a defense attorney is
assigned to the case as soon as it is determined that the defendant may have a
mental illness and the case is continued to a special afternoon calendar. The defense counsel consults with the
defendant before a clinical assessment is conducted by a mental health
clinician.
The mental health system should work with the defense
counsel to assure that counsel has all the information needed to effectively
represent a client.
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b.
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Ensure that defense counsel can identify alternatives to incarceration in appropriate cases for their clients with mental illness.
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In some jurisdictions it falls to a pretrial services
program to identify and track programs in the community that could be used for
referrals of defendants, and to probation departments to do the same for
post-conviction alternatives. This
recommendation calls for the defense to be equally familiar with mental health
resources in the local community.
Defense counsel should know
program admission criteria and requirements; required lengths of stay;
confidentiality rules imposed by the program; clinical capabilities;
availability; and costs. Finally,
defense counsel should be aware of the qualitative performance of such
programs.
Obtaining this knowledge may require access by defenders
to expert services. In many
jurisdictions, the public defender's office has staff who assist attorneys in
finding appropriate alternatives.
Example:
Public Defender's Office, King County (WA)
In King County, social workers are assigned to
the public defender's office to help defense attorneys identify and develop
mental health treatment alternatives to incarceration for defendants with
mental illness.
In other jurisdictions - particularly small jurisdictions
- defenders may have very limited resources.
Yet even then, at least one state has taken on the responsibility of
providing expert services to defenders in all parts the state.
Example:
Georgia Indigent Defense Counsel
In Georgia, much of the information regarding
alternatives to incarceration for people with mental illness is catalogued by
the Georgia Indigent Defense Counsel (GIDC), which serves as an information
resource center for defense attorneys throughout the state. The GIDC provides defense attorneys with
seminars and publications addressing the special needs of clients with mental
illness. The GIDC is also available to
defense counsel for telephone consultation on individual cases.
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c.
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Develop materials and training programs that cover recent legal holdings that might affect the client with a mental illness.
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Defense counsel representing persons with mental illness
must carefully consider how mental health information may potentially be used -
not just in the instant circumstance but in future hearings involving the
client as well. Counsel must also be
aware of the potential ramifications of actions being considered. For example, advising a defendant to plead not
guilty by reason of insanity to a relatively minor offense could expose the defendant
to more extensive loss of liberty than in simply pleading guilty. (See Policy Statement 29: Training for Court
Personnel.)
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d.
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Make resources available to the family members and friends of people with mental illness to help them navigate the criminal justice system.
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When a person with mental illness becomes involved in the
criminal justice system, his or her family, friends, mental health service
providers, and other advocates may want to help in a variety of ways. Family members may want to inform the
defense attorney about the defendant's mental health history, to advocate for
the defendant's placement in a particular treatment program, or generally to
help their loved one navigate the criminal justice system. Advocates in some communities have developed
resources for such situations.
Example:
When a Person with Mental Illness is Arrested: How to Help, Urban
Justice Center, New York City (NY)
Staff at the Urban Justice Center's Mental Health
Project have developed a practical handbook for supporters of people with
mental illness who have become involved in the criminal justice system. The handbook provides general information
about the criminal justice process (arrest, arraignment, meeting with counsel),
relevant statutes, and advice for advocates on working with defense attorneys,
as well as information specific to the New York City criminal justice system.
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