"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Monday, July 20, 2015

James Holmes real trial begins: To kill or not to kill the mentally ill

James E. Holmes
James E. Holmes
You can't execute a minor. You can't execute someone with a sufficiently low IQ. How does mental illness fit into that equation?

Now that James Holmes has been found guilty of the terror that he brought to the Aurora theater that night 3 years ago, the real trial begins, in which the jurors decide whether Holmes lives or dies.

No one can be surprised by the guilty verdict in a trial in which the testimony was so often so heartbreaking. The mass murders were not only an offense against the victims and their families, but also an offense against an entire community.

And in any case, the question wasn't whether Holmes had done the unthinkable. He had admitted he had. The question put to the jury was only whether Holmes was legally sane when he did the unthinkable. It was clear from the start how this phase of the trial would end. Whether the testimony actually showed him to be sane or insane, Holmes would inevitably be found sane enough. And so he was.

This verdict was not about expert testimony or about the ramblings in a notebook or about the hours of psychiatric interviews or about Holmes' strange - yes, crazy - ideas about gaining "value" from killing others. Holmes said himself he knew right from wrong. Philosophers have trouble with that concept. It's no wonder when juries do.

But now the certainty ends, and the question changes. It also gets tougher.

Because whether or not Holmes was legally sane - and the verdict won't end those arguments - he is clearly mentally ill. There seems to be no argument about that. Psychiatrists testifying for the prosecution and for the defense agreed, most putting him somewhere on the schizophrenia spectrum. We assume all mass murderers are not normal, but a diagnosis of schizophrenia makes it official.

The penalty phase of the trial could last as long as a month, and we will doubtless hear about Holmes' long struggle with mental problems. And so the question for the jury, and for the rest of us, will be: Should we execute a mentally ill killer in Colorado?

That's a much different question than determining guilt or innocence. And in this, where the facts were not in dispute, it's a much harder question. What are the rules, legal or moral or otherwise? What level of sanity is sanity enough? The same jury that determined that Holmes was legally sane - a so-called death-qualified jury, meaning the jurors have agreed they're willing to impose the ultimate penalty - will also make that decision.

Before we go any further, I should say that I'm opposed to capital punishment in all cases. This hardly makes me a radical. The state of Nebraska, where you're hard pressed to even find a liberal, has just banned capital punishment. The state of Pennsylvania, where 185 prisoners are currently on death row, is sufficiently ambivalent about the punishment that it hasn't executed anyone since 1999.

As I wrote after the Nebraska legislative vote, capital punishment can't long survive without certainty, and it's pretty obvious how uncertain we are on this issue. Barack Obama is said to be "evolving" on capital punishment, meaning we could see some executive action on federal death penalty cases. The polls, which not so long ago showed 80 % of Americans favoring the death penalty, are now closer to 50 % if life without parole is given as an option.

When the case of the botched Oklahoma execution of Clayton Lockett went to the Supreme Court, Justice Stephen Breyer wrote a 40-page dissent saying that it was time to look again at the death penalty as cruel and unusual punishment. "The arbitrary imposition of punishment," he wrote, "is the antithesis of the rule of law."

The arbitrary argument is easily made. Most executions come from just a few states and, in most cases, from only a few districts in those few states. This is the definition of arbitrary: There were, by 1 account, 35 executions last year as opposed to nearly 15,000 murders.

In Colorado, there has been only one execution since the Supreme Court reinstated the death penalty in 1976. John Hickenlooper's controversial reprieve of Nathan Dunlap - made as Hickenlooper also evolved on capital punishment - became an issue in the gubernatorial race, but obviously not a decisive one.

But what comes next in the Holmes case could be decisive. The Supreme Court has put limits on the death penalty. You can't execute a minor. You can't execute someone with a sufficiently low IQ. How does mental illness fit into that equation? It may take many years of appeals to find out.

If a death-qualified jury were to decide that life without parole is the proper punishment for a mass murderer, that could change the course of the death penalty in Colorado. That is probably a long shot, though. In liberal Massachusetts, where they banned the death penalty 3 decades ago, Boston Marathon bomber Dzhokhar Tsarnaev was sentenced to death in federal court by a death-qualified jury. That's despite the fact that a Boston Globe poll showed that only 15 % of Bostonians favored death.

Of course, that was a terrorism case. In the Holmes case, the motive is not so easily explained. If jurors decide that the explanation is, in large part, that Holmes may be legally sane but still mentally ill, what do they do? What should they do?

Source: The Colorado Independent, Mike Littwin, July 17, 2015


Holmes to have limited mental health options

Specialists say psychiatric care poor in prisons

Whether James Holmes gets life without parole or a death sentence for the Colorado theater shooting, he will spend years behind bars, joining about 6,000 inmates in Colorado and hundreds of thousands of others nationwide who suffer from mental illness.

Specialists say prisons are ill-equipped to treat the growing number of inmates with mental illnesses, including the majority who are not convicted of crimes as violent as Holmes, who was diagnosed with a form of schizophrenia.

A jury on Thursday convicted the 27-year-old former neuroscience graduate student of murder and other charges for his 2012 assault at a midnight screening of a Batman movie that killed 12 and wounded dozens of others.

The same jurors will decide his sentence in the penalty phase of the trial, which starts Wednesday and will take about a month. Even if they decide Holmes should be executed, as prosecutors want, he would spend years in prison as his mandatory appeals play out in court.

Holmes pleaded not guilty by reason of insanity, but jurors rejected the claim after two state-appointed psychiatrists testified he could distinguish right from wrong, Colorado's test for sanity.

But the 2 state psychiatrists and two defense psychiatrists agreed he suffers from mental illness.

If jurors had found Holmes was insane, he would have been committed indefinitely to a state mental hospital. Instead, he could end up at the San Carlos Correctional Facility, Colorado's 250-bed prison for inmates with mental illness, where specialists agree his treatment will be at a far lower standard than if he were hospitalized.

"In most hospitals, you don't have staff whipping out Tasers and pepper spray and using it on their patients," said Jamie Fellner of Human Rights Watch, who has studied mental health treatment in prisons and recently wrote a report detailing instances of mentally ill prisoners being beaten or so violently restrained that they die. "This kind of treatment isn't just restricted to someone who's committed a horrific crime." Last year, Colorado's Department of Correction approved a $3 million settlement to resolve a lawsuit from a family of an inmate with a form of schizophrenia who died after being restrained in the San Carlos prison. Staffers were videotaped joking as Christopher Lopez suffered seizures and died. The agency said it fired 3 people.

A spokeswoman for the Department of Corrections said no one was available to comment Friday on the prison system's mental health care.

People with mental illness sometimes wind up in jail because law officers don't know what else to do with them, said Scott Glaser, executive director of the Colorado chapter of the National Alliance on Mental Illness.

And once in the criminal justice system, they find it hard to get out.

"They cannot usually get effective treatment," Glaser said. "It increases recidivism. If someone is dealing with a mental illness that affects their decision-making. It's very easy for them to end up in the system again."

Nationwide, a 2006 federal study estimated that 56 % of all prisoners in state custody suffered from mental illness and 15 % suffered from some sort of psychotic disorder. Mental health advocates say their treatment is almost uniformly substandard for a variety of reasons.

Mentally ill people do not fare well in the crowded, loud environment of prisons, the study concluded. They are more likely to have trouble following rules, which makes them more likely to be punished and end up in solitary confinement.

The isolation of a solitary cell can vastly aggravate their mental illness. They are also more likely to be victims of sexual abuse, the study said.

Colorado lawmakers banned solitary confinement for inmates with serious mental illness after a prisoner who had been held in solitary for much of his 8-year term was suspected of killing the state prisons chief, Tom Clements, in 2013.

"Prison is a pretty horrific place to be, especially if you have a mental illness," said Laura Usher of the National Alliance on Mental Illness' national office.

The incarceration of mentally ill inmates in jails and prisons has been a persistent national problem since the widespread closure of mental hospitals in the 1970s.

A local community care system to handle the newly released mentally ill never materialized, and now they often end up behind bars. There the Constitution entitles them to basic medical treatment, said Dr. Renee Binder, president of the American Psychiatric Association, but it's often hard to meet that standard.

The APA and other groups are pushing for more programs to keep the mentally ill out of prison initially - be it those special courts or local treatment.

"When someone ends up in jail and prison and has a serious mental illness, it's really a problem with the system," Binder said. "The question needs to be asked: 'Could we have prevented this?'"

Source: Associated Press, July 18, 2015

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