03.20.07
I May Be “Guilty But Mentally Ill” in Las Vegas
I am gearing up for my vacation to Las Vegas starting on Thursday, so I decided to see what was going on in the world of crime and defense in my favorite city of Elvis, roulette, and open containers. And I came across as issue that, shockingly, I have not yet figured out an opinion on - whether a verdict of “guilty but mentally ill” should be an option in criminal cases.
Apparently, the state of Nevada scrapped the “not guilty by reason of insanity” verdict back in 1995 and replaced it with “guilty but mentally ill.” The Nevada Supreme Court slapped the legislature down, however, ruling in 2001 that getting rid of the insanity defense was unconstitutional and eliminating the “guilty but mentally ill” option. But now State Assemblyman William Horne - a Democrat and a criminal defense attorney - has proposed re-introducing the “guilty but mentally ill” verdict in addition to the constitutionally-mandated insanity defense. The public defenders in the state, though, have expressed concerns that such a verdict would actually deprive the mentally ill of proper treatment.
“The defense bar does raise some legitimate concerns, but I don’t think it’s bad that a jury can say, ‘You didn’t meet the standard for insanity, but you did have some mental health issues,’” Horne said.
Horne added that offenders should still have an obligation to society to pay for crimes they commit.
[…]
Lisa Rasmussen testified for Nevada Attorneys for Criminal Justice, saying the proposed standard should not be used to erode the “not guilty by reason of insanity” standard. She said it should only be allowed if the defendants propose it themselves, and not by prosecutors as a bargaining tool against the insanity plea.
She also pushed for excluding death penalty and life-without-parole sentences for those found guilty but mentally ill.
As the actual text of proposed AB193 makes clear, a defendant would have to prove mental illness by the (relatively low) preponderance of the evidence standard and would also “generally” be subjected to the same penalties as any other defendant pleading guilty.
Regardless of whether a defendant is mentally ill at the time of sentencing, the court is required to impose any sentence available to the court for a defendant who pleads or is found guilty of the same offense. However, if the defendant is mentally ill at the time of sentencing, the court is also required, under certain circumstances, to direct the Department of Corrections to provide to the defendant such treatment as is available for his mental illness during his confinement or probation.
Specifically in regards to treatment:
[A court shall] include in that sentence an order that the defendant,
during the period of his confinement or probation, be given such treatment as is available for his mental illness if the court determines that the relative risks and benefits of the available treatment are such that a reasonable person would consent to such treatment.
The Department of Corrections shall provide any treatment ordered by a court [.]
So, while the verdict could be incredibly helpful in some circumstances, the public defender faction seems to be quite correct (not that I am biased or anything) in their concerns about what actual treatment these defendants may receive. Now, I do not know any details about the mental health resources available in the Nevada Correctional system, but “whatever treatment is available” seems awfully vague. It appears that individual judges would be responsible for mandating specific treatment (hopefully with the input of defense attorneys), but that the DoC would be responsible for carrying it out. It’s sort of like adding a condition of probation to a jail sentence and I’m not sure how practical or helpful that really is to a defendant with mental health issues.
