Some good advice about representing the competent but crazy

photoKirk Redmond is the First Assistant Federal Public Defender in Kansas. He is very experienced and very thoughtful.

He read my post entitled Competent but crazy. In that post, I wrote that “I want to learn of the experiences of practitioners who have dealt with clients in this place of darkness and eternal suffering. That is, tell me please of your experiences in dealing with the crazy but competent.”

Kirk responded by personal e-mail. I found his response very practical and helpful. He has graciously allowed me to pass it along to you:

Your Honor-

Here is what I have learned over the years about clients with profound mental illness that does not render them legally incompetent.

1. Lean in and speak softly. When visiting these clients, the conversational tone is critical. When they speak louder, I speak more softly. When they get agitated and move toward me, I need to lean in to meet them. A quiet, close conversation creates a better bond.

2. All mitigation is double-edged. Judges perceive mental illness as mitigating and aggravating. Presenting a client as mentally ill without a plan for where we go from here is not mitigating at all. It is a recipe for recidivism. After de-institutionalization, jails are the only place that society has provided to contain many of my folks. But by getting Probation involved early in the process, a plan can be developed for what happens after whatever period of incarceration occurs. It works sometimes.

3. Much of the time, I can help only at the margins. The legal standard for competency is not high. My old boss referred to the test as “slipper-eating crazy.” If the client was not actually consuming his footwear, he is legally competent. On the ground, that is the case. It is our job as defense counsel to manage the detritus. As a result, we have a parens patriae relationship to our folks. It’s very hard. We spend a lot of time talking about these questions in our office.

Feel better.

No, Kirk I don’t feel better. But, I am very glad there are defense counsel like you who understand the problem, who deal with it as best they can, and who show empathy in the process. Thank you!

RGK

2 responses

  1. “These people” Mr. Redmond defends, the mentally ill, the homeless, the substance abusers, are always guilty of something. That’s how they got into the system. Crimes such as loitering, open container, disturbing the peace, assault, indecent exposure (which usually amounts to peeing somewhere they shouldn’t), public intoxication, etc. etc. are punishable, especially for multiple offenders. Addicts get into more serious crimes, including armed robbery. Since they usually have no money to pay a fine, these folks usually go to jail (last I read, muni and county jails were around 70% populated by these folks.)

    What is to be done? In the US, punishment is the first resort. This largely reflects public opinion. Average Americans, who have had no experience in the criminal justice system, just want law and order. In many places, judges are elected, and are happy to run on a nice record of convictions and jailings. Most Americans can’t imagine that the people who are being sent to jail are almost always released into society, just a few months or years hence. Having had little to no interventions, support, counseling, etc. recidivism is large.

    The paradigm is different in the E.U., where treatment comes first. This is a good read:
    http://www.theatlantic.com/international/archive/2013/09/why-scandinavian-prisons-are-superior/279949/

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