The ABA Criminal Justice Standards on Mental Health: The Greatest Practice Resource You’ve Never Heard Of

The Standards almost always employ the term “should” rather than “shall.” This is because the Standards are aspirational and as such don’t carry the enforceable weight of codes of professional responsibility that have been incorporated by reference or fashioned out of whole cloth by state bar authorities. Nonetheless, the Standards provide valuable, citable, even-handed guidance, and, like all such resources, they achieve their greatest practical value when counsel consults them before deciding rather than in the pursuit of justification afterwards.

If the Earlier Version Was So Great, Then Why Did the Standards Need to Be Revised?

A lot happened in criminal mental health law between 1984 and 2016, including a run of game-changing Supreme Court decisions that extended a comprehensive array of protections to persons with “mental disorders” (the Standards use this term, so we will too). In Atkins v. Virginia, 563 U.S. 304 (2002), the Court ruled that executing people with intellectual disabilities violates the Eighth Amendment’s ban on cruel and unusual punishments. Hall v. Florida, 572 U.S. 701 (2014), narrowed the discretion with which states can designate an individual convicted of murder as too intellectually incapacitated to be executed. Olmsted v. LC, 527 U.S. 581 (1999), established that people with disabilities have a qualified right to receive state-funded supports and services in the community rather than institutions.

The Court also handed down a series of decisions regarding younger persons—decisions that, while not focusing on mental disorders per se, had readily apparent mental health implications. J.D.B. v North Carolina, 564 U.S. 261 (2011), confirmed that age is relevant when determining police custody for Miranda purposes. In Roper v. Simmons, 543 U.S. 551 (2005), the Court held that it is unconstitutional to impose capital punishment for crimes committed under the age of 18. Graham v. Florida, 560 U.S. 48 (2010), settled that juvenile offenders cannot be sentenced to life imprisonment without parole for nonhomicide offenses, and Miller v. Alabama, 567 U.S. 460 (2012), expanded Graham by specifying that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders, including those convicted of murder.

More generally, the exoneration of wrongfully convicted persons has exposed that many individuals with mental disorders had given false confessions. Many jurisdictions have fashioned mental health courts and other problem-solving courts that divert people with mental disorders out of the criminal justice system. Police and sheriff departments have implemented Crisis Intervention Training (CIT) programs that teach first responders about techniques such as de-escalation. Meanwhile, the number of people with mental disorders in our prisons and jails is mind-boggling. It is far more than a cliché to assert that our jails and prisons have become de facto mental institutions.

It is easy to see that the 2016 Standards were forged in a climate of fast-paced and far-reaching legal development. The panel that revised them was composed of a broad range of contributors: academics, judges, law enforcement, prosecutors, criminal defense lawyers, and mental health experts. Although this article focuses primarily on guidance offered for defense counsel, the breadth of perspectives that informed the Standards ensured that the result would be neither a defense nor a prosecution document. All practitioners should become familiar with the Standards to ensure a fair, balanced, and individualized approach to the criminal justice experience of an often-misunderstood population.

What Practical Implications Do the Standards Have for Counsel?

Standards of any sort can inspire and inform, but their greatest value for counsel lies in their practical implications. Following are examples of common issues in the representation of persons with mental disorders, blending guidance culled from the Standards with specific advice that draws upon this direction.

Client-Centered Representation

Attorneys who represent defendants with mental disorders should provide client-centered representation that is interdisciplinary in nature. These attorneys should be familiar with local providers and programs that offer mental health and related services to which clients might be referred in lieu of incarceration, in the interest of reducing the likelihood of other involvement with the criminal justice system.

“Client-centered” has become a buzzword in recent years. In fact, if you google “client-centered representation,” a number of law firms advertising their “client-centered” approach come up. Client-centered is opposed to the more traditional lawyer-centered representation where the lawyer knows best, and is almost solely focused on the legal case and its resolution. “The basic guiding principle underlying client-centered representation is to value and enhance the client’s autonomy, both within the lawyer-client relationship and within society.” Here, “autonomy” means “self-rule.” Katherine R. Kruse, Engaged Client-Centered Representation and the Moral Foundations of the Lawyer-Client Relationship, 39 Hofstra L. Rev. 577, 587 (2011). But, of course, in the case of a client with a mental disorder, that may be easier said than done.

The Standards encourage practitioners to be familiar with local providers and programs that offer mental health and related services. This may not seem to be a radical notion, but it is to the degree that many attorneys tend to be siloed; that is, we know about courtroom proceedings and the law, but we may not be terribly conversant in related areas such as bail, corrections, and support services.

Beyond familiarity with local providers and programs is the challenge of finding appropriate treatment facilities for people with mental disorders. Judges from Anchorage to Manhattan will tell you not only about a shortage of resources, but also the difficulty of placing many people because of their unique constellation of issues. Indeed, many a parent can describe calling various facilities to be told that a son or daughter is ineligible because of funds, or a prior conviction, or the type of offense charged, or that a particular condition is not treated.

Criminal defense lawyers may grumble that they “are not social workers.” But this is not what the Standards are urging. Rather, they are calling on lawyers to understand that people with mental disorders have unique needs, that helping them avoid incarceration is only part of their responsibility, and that in order for a client to be successful, he or she must have a variety of needs met such as counseling, medication, housing, transportation, and employment.

Explaining Client Options

Attorneys who represent defendants with mental disorders should work particularly closely with their clients to ensure that these persons understand their options. Counsel should be prepared to deal with difficulties in communication that can result from the client’s mental disorder, or from transfers to a different locale necessitated by treatment needs. That a client needs to “understand” seems fairly self-explanatory, and perhaps even gratuitous, until one considers just how important understanding is to the critical criterion of competency.

Dealing with “difficulties in communication” comes with experience, and our education in this area never ends. For example, when speaking with someone with an intellectual disability, we might want to ask open-ended questions to avoid leading them or having them agree with whatever we say. When speaking to someone with autism spectrum disorder, we might be aware that they may respond differently to sensory stimulation such as handshakes, the sound of office machines, or smells such as air fresheners. Persons with autism spectrum disorder also may not understand sarcasm or read between the lines, and as such, defense counsel may need to be as literal as possible.

Criminal defense lawyers should also be aware that meeting with a client with a mental disorder who is in custody or receiving inpatient treatment may pose additional obstacles, such as the client refusing to come out of his or her cell. If the client is in an inpatient treatment facility, the attorney may have to travel, and to make appropriate visiting arrangements well in advance.

Exploring Client Questions

Attorneys who represent defendants with mental disorders should explore all mental state questions that might be raised, including whether the client’s capacities at the time of police interrogation bear on the admissibility or reliability of any incriminating statements that were made, whether the client is competent to proceed at any stage of the adjudication, and whether the client’s mental state at the time of the offense might support a defense to the charge, a claim in mitigation of sentence, or a negotiated disposition.

Exploring all possible mental state questions may seem simple on its face. But how does this square with the earlier suggestion to be client-centered? What if the attorney represents a white-collar executive who doesn’t even want counsel to retain a mental health expert, let alone argue that a condition she has been masking contributed to the offense? What if a client with a delusional disorder has no insight into his condition and would strongly disagree with a diagnosis and refuse to cooperate with an expert? What if a client with paranoid schizophrenia refuses to talk with her attorney and with mental health experts because, at the end of the day, she truly doesn’t trust anyone?

There is no single “right” answer, and every client is different, but the first step is always to do whatever is necessary to build trust. This usually means spending substantial time with clients, repeatedly visiting them if they are in custody, and trying to satisfy any reasonable demands they might have, whether this involves interviewing key witnesses or arranging for a haircut at the local jail.

The notion that results of police interrogations might be problematic is significant, insofar as it recognizes the phenomenon of false confessions and systemwide ramifications that can include suppressed statements, wrongful convictions, and significant financial settlements.

The requirement that a defendant be competent at all stages of legal proceedings is a deeply ingrained aspect of criminal representation. But as a practical matter, most of the time, incompetency to proceed is not a permanent solution—that is, defendants are usually restored by virtue of a relatively low standard. Similarly, defenses of “not guilty by reason of insanity” are rarely successful because the bar is set so very high. As a result, the vast majority of cases where mental issues are at play will come down to mitigation.

Seeking Collateral Information

Attorneys who represent defendants with mental disorders should seek relevant information from family members and other knowledgeable collateral sources. Unless Model Rule of Professional Conduct 1.14b (regarding an attorney’s duty to take protective action for clients with diminished capacity) specifically applies, attorneys should share information about their clients with family members and knowledgeable collateral sources only with their clients’ assent, and in a way that does not compromise the attorney-client privilege.

Family members often know the defendant best. Depending on the family’s situation and the age of onset of a mental disorder, the family has kept records, and can help point to other people with knowledge of the client’s behavior, such as teachers, neighbors, and employers. Families can also provide what are often heart-breaking stories of the client’s mental disorder, as well as describing what clients still need in terms of treatment and other support.

However, some people with mental disorders may not want counsel to communicate with their families. Perhaps there is specific information they may not want shared. This may be a bitter pill for the family to swallow—particularly if they have played an ongoing role in the client’s care and (in the case of retained counsel) are paying the client’s legal fees.

The fundamental importance of attorney-client privilege and confidentiality needs to be explained as soon as possible to both clients and families. Indeed, some attorneys prepare a written waiver for a client to sign if in fact they agree to share information. Additionally, some families may not understand why their letters to the court or prosecutor were ignored. On the other hand, sympathetic judges and prosecutors—particularly those assigned to a mental health court—may listen to family who try to advocate for their family members.

Utilizing Specialized Courts

Attorneys who represent defendants in specialized courts must become familiar with the availability and function of these alternative tribunals. Because clients may relinquish substantial rights in order to avail themselves of the benefits of specialized courts, the attorney’s role as “counselor” is particularly important in this setting.

As noted in the 2007 version of the ABA Standards for Criminal Justice—Pretrial Release:

This Standard calls upon jurisdictions to take advantage of the growing numbers and types of alternatives to adjudication that complement pretrial release conditions. These alternatives include specialized courts to deal with problems frequently associated with defendants entering the criminal justice system. Drug courts, domestic violence courts, mental health courts, and related treatment-oriented court programs have demonstrated their utility in many places across the nation.

Id. at 47–48. In particular, and highly relevant to people with mental disorders, as of the writing of this article, there now exist approximately 360 adult mental health courts and 50 juvenile mental health courts. Additionally, defendants with a military background who have post-traumatic stress disorder or traumatic brain injury might be suitable for veterans’ treatment courts.

A complete analysis of mental health courts and veterans’ treatment courts is beyond the scope of this article, but in brief, these courts are not perfect for everyone. For example, a person with an intellectual disability may not have the capacity to follow through on the relatively stringent requirements of a mental health court. Counsel must explain that the consequences for this apparent failure may be significant. Persons with a mental illness who are on medication may be at risk for a false confession because the coercive conditions of interrogation could exacerbate the effects of a drug, or because the subject is denied maintenance doses of medication during a prolonged interrogation. Yet, in some mental health courts or veterans’ treatment courts, pre-trial issues like suppression motions may not be litigated. For these reasons, attorneys who truly adopt the mantle of “counselor” must review such options openly, sensitively, and strategically on a client-by-client basis.

What Practical Implications Do the Standards Have for Other Professionals?

Although the Standards may find their most fulsome application in the hands of defense counsel, specific attention is paid to the roles of such other parties as judges, prosecutors, and mental health professionals. Following are just a few examples.

Judges

Judges are encouraged to consider treatment alternatives for persons with mental disorders, with an understanding that such measures can reduce recidivism while contributing to the longer-term safety of members of the public. The ongoing development by the judiciary of specialized courts and diversion programs is cited as a welcome development. Selection for such options is most effectively based upon evidence-based appraisals that take into account relevant risks as well as treatment needs.

Prosecutors

When forensic mental health evaluations are initiated by the court, prosecutors should have an opportunity to provide relevant information to the expert witnesses in question. For all evaluations, prosecutors are best advised to seek advance determination of the timing and extent of their access to forensic reports and appropriately distributed underlying information. Prosecutors are encouraged to seek joint evaluations by two or more forensic examiners, or by an agreed-upon sole forensic examiner.

Mental Health Professionals

Mental health professionals are explicitly recognized as serving a host of valuable roles in criminal proceedings. They can provide expert opinions and testimony about past, present, and future emotional states. Mental health professionals can inform the court about certain aspects of their parent scientific disciplines in ways that do not require a client examination. They may also serve in additional consultative, treatment, and policy roles. The Standards stress the need for the legal system to respect these providers as well as their assistance.

Are the Standards Currently Being Employed as “The Standard”?

No … but they should!

Almost four years after their revision and their subsequent adoption by the ABA House of Delegates in 2016, the Standards are essentially missing in action when it comes to reported case law. A recent WESTLAW search identified only two cases that refer to the latest version of the Standards by name. In the published State v. Einfeld, the Standards were invoked to underscore “[t]he constitutional demands of due process” in trial competency hearings. 914 N.W.2d. 773, 779 (Iowa 2018). The unpublished People v. Liggett utilized the Standards to describe optimal approaches to determining competency “at the time of appeal in a noncapital case.” No. 14CA2506, 2018 WL 3384668, at *5 (Colo. App. July 12, 2018).)

During the same period, the Standards have maintained a similarly low profile when it comes to legal scholarship. A companion WESTLAW search surfaced only six law review articles that made explicit reference to the revised Standards, and two of these were composed by the same author: mental health law professor Michael L. Perlin, who used the Standards to explain “the doctrine of incompetence to stand trial” in one (Michael L. Perlin, “God Said to Abraham/Kill Me a Son”: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence, 54 Am. Crim. L. Rev. 477, 489 (2017)), and “[a]rticulation of the incompetency status” in the other one (Michael L. Perlin & Mehgan Gallagher, “Temptation’s Page Flies out the Door”: Navigating Complex Systems of Disability and the Law from a Therapeutic Jurisprudence Perspective, 25 Buff. Hum. Rts. L. Rev. 1, 16 (2018–2019)).

Yes, these sources primarily address “competency” issues—yet, as you’ve seen, the Standards reflect a far more expansive scope that extends to matters including criminal responsibility, sentencing, testimony, treatment, and commitment.

Now the Standards are the greatest practice resource you have heard of. Knowledge is power, for you and for your profession. The more we consult the Standards, the more we discuss them, and the more we cite them as the basis for your actions and legal reasoning, the more recognized and more influential they become, to the benefit of everyone involved.

That link again: https://tinyurl.com/ABA-CJS-on-MH. Spread the word.