South Carolina Criminal Defense Blog

The NYTimes yesterday noted that Elana Kagan, Obama's nomination for the USSCT, had argued in favor of the government in this case:

At the argument of the case in January, Solicitor General Elena Kagan, now President Obama’s pick for the Supreme Court, said the law was needed “to run a criminal justice system that does not itself endanger the public.” She said 105 people had been confined under the law.

Ms. Kagan pointed to the Constitution’s “necessary and proper” clause as granting Congress the power to pass the law, though the clause is not ordinarily thought of as a source of free-standing authority. The clause gives Congress the right “to make all laws which shall be necessary and proper for carrying into execution” its other powers.

Not a huge deal, I suppose. The fact that the USSCT approved the indefinite detention of persons deemed to be sexually dangerous is not a huge deal at this point either - the USSCT and every state supreme court opinion that I have seen have already upheld these statutes under Due Process challenges where it is the states that are detaining the offenders under state laws.

What makes this case different is that it is the federal government doing the detaining under federal law, and not the states. The decision is not significant for the fact that people are being detained indefinitely - that is old news - what is significant is the further broadening, or stamp of approval on breadth already taken by the Congress, of the federal government's power to detain and hold citizens in jails. The states already have systems in place to evaluate and detain sexually violent predators, and the federal government does not belong in this arena.

Another thing that bothers me is that throughout the Comstock opinion the majority analyzes the issue as if they are discussing a criminal law, with criminal penalties for criminal conduct that has been committed. The state sexually violent predator laws have been upheld in part because they were not criminal penalties - they were civil statutes and the process was one of civil commitment (even though the offender remains in a detention facility in a prison cell) and therefore there was no double jeopardy issue. We are not punishing people in advance for crimes they have not committed, we are civilly committing people who are diagnosed as mentally ill and who have been found to be a danger to others.

The tone of Comstock seems to be A-OK with classifying indefinite commitment of sex offenders as a criminal penalty for crimes that have not yet been committed.

If a person is found not guilty by reason of insanity (NGRI) in South Carolina, they are not released. They are committed to a state hospital for an initial period of 120 days, and then they are evaluated at regular intervals to determine whether they are a danger to self or others. If they are dangerous, they remain in the hospital for a period of time not to exceed the maximum sentence they could have received for the crime that they were charged with.

If a person is found guilty but mentally ill (GBMI), they are sent to prison. They are “flagged” as mentally ill, but they are sent to prison. In the prison there is a mental ward, where inmates can be kept for 45 days before they are released to the general prison population.

In South Carolina, the guilty but mentally ill statute is designed to prevent juries from ever finding a defendant NGRI. The Court and the attorneys are not allowed to tell the jury what will happen if they find a defendant NGRI or GBMI, and they are left to assume that NGRI means the defendant is set free and that GBMI means they go to a hospital.

Even worse, the language of the GBMI statute says that GBMI is an “affirmative defense,” and that the defendant has the burden of proving it by preponderance of the evidence. If the defendant proves that it is more likely than not that the defendant was mentally ill and could not conform his actions to the law, then the jury must find the defendant GBMI. ??? The statute mandates that the judge charge the jury on GBMI any time that insanity is raised. Except, it is not a defense. It is a guilty verdict.

The only reason that this language is in the statute is to confuse the jury so that they will always find a person GBMI and not NGRI. It is wrong. It is a lie. We ask the jury to give us a verdict that speaks the truth, and then we lie to the jury about what the law is to ensure that mentally ill defendants go to prison, and to keep the truth from them. This is a joke, and there is no justice in South Carolina for the mentally ill.

We just finished a week long trial where our doctor and the state’s doctor testified that our client was mentally ill and that he did not understand the difference between right and wrong (the test for not guilty by reason of insanity). I believe that the jury understood that our client was mentally ill and that he needed help and not prison. During deliberations, they came back with a question – “if we find the defendant guilty but mentally ill, where will he be housed?” And the Court had to tell them, I cannot answer that question.

I will say that, regarding the judge and the prosecutor in our case, our client received as fair a trial as he possibly could under the circumstances. This trial was an example of how a prosecutor can be ethical, not cheat, and still win a conviction. And I know that he received the best defense that he possibly could under these circumstances. The problem here is that the system is designed so that there will never be a jury verdict of not guilty by reason of insanity. Why do we lie to juries? If the only option is to put a person in prison, why don’t we just do away with the notion of NGRI, and tell the jury that their only option is guilty or not guilty?

Via Skelly at Arbitrary and Capricious, Judge Peter D. McDermott in Idaho ordered a mentally ill defendant gagged with duct tape to stop his outbursts during a hearing. Nicklas Frasure was in court for a probation violation hearing, but his public defender, Kent Reynolds, was requesting a mental competency evaluation (his clients response: "I'm totally fine," Frasure said. "I have a sense of humor. I'm not bad looking. I can walk on my hands.").

Frasure had spent time in a mental hospital, and there was testimony during the hearing as to his mental illness. Rather than order the defendant removed from the courtroom, which the judge had every right to do, he instead ordered that the defendant be gagged to prevent his outbursts during the proceeding. Ultimately, the judge did order that Frasure be committed for evaluation and treatment (in department of corrections).

"I want to see you get better," McDermott told Frasure.

"You want to arm wrestle?" was Frasure's reply before being led from the courtroom by bailiffs.

The SCOID blog points out that this judge has recently announced retirement:

Does this have anything to do with the Judge's recently announced retirement? Maybe he's been wanting to do this for 20 years and saw this as his last chance. Now, I've occasionally wanted to tape my client's mouth shut too, but for different reasons and I've never actually done it! Does the Idaho Judicial Council read the Idaho State Journal?

I think that judges can sometimes become jaded, presiding over criminal trials, pleas, and hearings day after day, and at times can forget that these are human beings standing before them. To order that a mentally ill defendant be gagged in the courtroom is shameful and disgusting, and regardless of this judge's announced retirement some action should be taken in response to this. Maybe at the time it was amusing, but there is nothing amusing about it when it is seen in print from 2500 miles away. Just my opinion.