Sen. Jeremy Hutchinson, R-Little Rock
A bill that Republican state Sen. Jeremy Hutchinson
says will reduce jail time for defendants waiting for psychiatric evaluations and preserve their constitutional right not to incriminate themselves will go before the Senate Judiciary Committee at 10 a.m. Wednesday.
Hutchinson worked with an Arkansas Bar Association task force studying the criminal code and mentally ill and disabled defendants to draft the bill, SB 42,
to amend state law. Earlier legislation sought to separate the forensic fitness process from the criminal liability evaluation, but courts were not abiding by it, lawyers said.
The bill bifurcates the evaluation process for defendants, separating the evaluation for fitness to stand trial, which counsel or court may seek, and the evaluation determining the whether the defendant was criminally responsible, which this bill makes clear may be requested only by the defendant. Hutchinson told the Arkansas Times
he believes that Arkansas is the only state that does not bifurcate the evaluations.
The new law makes it clear that only defendants may request the criminal responsibility evaluation; a finding that the defendant was not responsible for reasons of mental health issues is an affirmative defense to the crime.
The evaluations are “totally different matters,” and it makes no sense to require them to be conducted at the same time, retired Polk and Montgomery County Circuit Judge Jake Looney
told the Times
Courts have been ordering both evaluations to be held before trial, which has left defendants, some with mental illness, languishing in jail until they could be assessed for both. It gave rise to a situation in which defendants, by answering questions about the crime during a culpability examination, may unknowing waive their Fifth Amendment rights during a subsequent trial.
Evaluations are done by the forensic team at the Department of Human Services. The criminal responsibility evaluations are more complex and demand more time than the fitness evaluations. In 2016, 1,542 defendants were referred to the State Hospital for both evaluations. Of those, 1,354 evaluations were completed.
Few defendants are not found fit for trial: In 2016, 1,052 were found fit; 202 were not. Only 58 defendants were found not to be criminally responsible.
In 2012, Jon Comstock, a lawyer and professor at the University of Arkansas at Fayetteville, testified before a joint committee of the House and Senate on public health that defendants he’d ordered evaluations for had had to wait as long as eight months in jail for an evaluation, and saw no mental health professionals during their time in jail.
Evaluations for competency to stand trial do not look at past behavior, but whether the defendant can cooperate with an attorney and understands the role of the court. “It is a snapshot of your current mental state,” Denise Hoggard, president of the Arkansas Bar Association, explained. If a defendant is found not fit to stand trial, he or she is ordered to the State Hospital. The criminal responsibility evaluation is unnecessary until the person is found fit.
The bill will make it clear that the second evaluation, which Hoggard said “embodies the principle that you can’t be held responsible for a crime if you were insane at the time of commission,” should be requested by the defendant at the time of trial, and not before.
Bifurcating the evaluations “serves the best interest of the state,” Hoggard said, and the counties as well, by reducing inmate numbers. She said the average wait now is three months.
Governor Hutchinson has proposed spending $5 million on three “crisis stabilization centers” that would remove the mentally ill from the criminal justice system. The 16-bed centers would cut down on the incarceration in county jails of people who primarily need therapy or medication for their illness. The proposal has the support of the County Judges and Quorum Court associations within the Association of Arkansas Counties and the Arkansas Sheriffs’ Association.