AZ v. Loughner v. Arnold v. Sarn

The assassination attempt on AZ Representative Gabrielle Giffords in Tucson this weekend - and the related murders of 6 bystanders, including a child - was deeply disturbing. The young man who appears responsible is seriously mentally ill. I wouldn't be surprised if he's diagnosed with manic depression, the label I carry with me when I chalk.

During a press conference today, one of the responding law enforcement officers suggested that "the problem" is that we don't have the mechanism we had in the 1960's "to incarcerate them", leaving homicidal manics to wander the streets, buy guns, and take out elected officials.

Sadly, however, in Arizona about all we do with the seriously mentally ill is incarcerate them - most for petty stuff. For every one person we put in the hospital in this state for the symptoms of their illness, in fact, we put ten behind bars. Arizona has been fighting court orders to improve community-based treatment for citizens with psychiatric disabilities for over two decades, investing far more in our resistance than we would need to in the solutions. Lives have been damaged and irretrievably lost in the process.

Is this tragedy one which might have been prevented by better treatment, hospital, and residential outpatient options for people with serious mental illnesses? I don't know. Could it have been prevented by more criminalization, longer sentences, fewer options for health and recovery? Highly doubtful. At what point would the system have identified, stopped, and treated Representative Gifford's shooter, and what would that treatment have looked like if such had been possible?

At the least, though, the rest of us could have made it harder for him to buy a gun and less likely that he might see himself as a hero for using it.

I tend to believe there's more we could have done, too. If we didn't collectively alienate and demonize people with mental illness so readily, then maybe it wouldn't be so hard to recognize when one needs help and seek it. If we didn't brutalize them in custody so often, then maybe they wouldn't be so paranoid about people with badges, uniforms, and guns - people with state power - trying to hurt them.

Think about it: suicide is 100% preventable. Homicide really should be as well. We've studied this stuff pretty extensively. So why are political solutions to crime still designed to just appeal to fear rather than actually reduce violence? It's not as if we lack the research or evidence-based practice recommendations. We appear to simply lack meaningful state leadership with both the knowledge and courage necessary to push through both public mental health care improvements and compassionate sentencing reform this year. They're still looking at how to gut the schools and community services while packing the prisons as cheaply as possible.

I'd hope that this devastating assault on Gabrielle Giffords would wake up Arizona's state legislators to what we need to be doing here to prevent the next such tragedy, not how to punish all potential such evil-doers actively exercising our first amendment rights without threatening a soul.

Now that they feel they're the main targets of the violence so many people face on a daily basis, it's possible that things will get much worse for us before they get better, however. We could face draconian - even criminal - sanctions for not agreeing with our doctor's medication recommendations. We could find our psychiatric diagnoses and treatment non-compliance become an aggravating factor, not a mitigating one, adding years of isolation and harsh punishment to our possible sentences - be they served under lock and key in state hospitals or state prisons.

They tried to pass such legislation recently as it is (sorry - can't find the link now).

We'll see. In the meantime, anticipating that they'll need to find some scapegoats to further advance their fascist agenda with this incident, watch each other's backs out there.

The restoration of Jerry Kulp.

APRIL: Please contact me about Jerry. We need to keep this from happening again...

480-580-6807

PEGGY PLEWS(APRIL 13, 2011)

I looked and looked this week for memories in the ether from Jerry Kulp's short life. All I could find were his court and ADC papers. Jerry was a 17-year old prisoner on the Minors Unit at ASPC-Tucson last May when he committed suicide.

Jerry hadn't even been in prison a week; he must have just been terrified. How could anyone on the Minors Unit miss all the signs he must have been broadcasting that he wasn't going to last long inside?


Jerry wasn't a gang member, from what I can tell. He was a seriously mentally ill child. He was only 15 when charged as an adult, at which time he was so mentally impaired that he required a guardian to make his legal decisions for him, and had to undergo several rounds of competency exams and "restoration treatment" in Joe's Jail over the course of 6-9 months to be fit for trial.


Does anyone else out there find that troubling? There seems to be a pattern here with mentally ill people being inappropriately prosecuted - kept in jail the whole time their trials are being postponed - (as if they already know that they're guilty and doing the time anyway) - while they medicate them into health. Once so restored, they promptly plead guilty to get out of there, and get sent to prison where they end up neglected or assaulted and killed.


I can't believe we prosecuted a mentally incompetent child as an adult, and then threw him into prison, but I guess we do that all the time. That can't possibly be legal. Why was this kid sent to prison instead of to a hospital, anyway? To teach him some kind of lesson? He seems to have suffered plenty enough. To scare the rest of us at his expense? No wonder we're so soul sick.



I'd like to speak to Jerry's friends and family, if you're out there. Some of us are organizing to make sure this doesn't keep happening to people like Jerry and me in Arizona's state prisons. My phone number is 480-580-6807. My email is prisonabolitionist@gmail.com. Peggy Plews.

RULE 11: Maricopa County, AZ Legislature, and Competency.

An informative - and troubling - reprint from the Winter 2007 journal issue of "CorrectCare," by the National Commission on Correctional Health Care. People should not be so brutalized for having a mental illness and being too poor to bond out to see a private shrink. We're far too casual about stealing chunks of people's lives like that - it's as if we assume that because they're mentally ill and/or poor their time is of no value to them, their community, or their families anyway - as if their lives have no value, essentially.

THAT's criminal.

This article came out three years ago, by the way - before the county jails lost their health care accreditation. And we know that mental health services in this state just took a huge hit. What a bunch of short-sighted, self-interested idiots we have in the legislature, "saving" our money by selling both our public property and our people's welfare to the highest bidder.

Expect the jails and prisons to swell even more folks - we're going to pay a hell of a lot more to store people there than we would have to treat them in the community or hospital and assure that they have housing (one big reason people are arrested for trespassing is lack of their own home and bathroom).

So much for our government's commitment to keeping us "safe" - it's the Arizona state government we're most endangered by now. Perhaps some of them should be detained for competency hearings...I have an idea of who to start with.

Those of you who have more recent experience with Rule 11, please contact us so we can make sure others are informed on current conditions.

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Restoring Competency: One County’s Solution
By Lindy Funkhouser, JD

In the spring of 2003, Ruben D.* appeared in a Maricopa County Superior Court room. Ruben was chronically mentally ill. His illness got particularly bad one day, leading to an arrest for disorderly conduct and trespassing. Ruben couldn’t make the $300 bail so he had to remain in jail until the court disposed of his charges.

On this day, after Ruben had spent about 60 days in jail, he and 15 other inmates were pulled from their cells to attend 2 ½ hours of a court calendar for defendants with “legal competency” issues. Some months ago, Ruben’s attorney had asked the court to evaluate his ability to understand his charges and to assist in his defense. In Arizona this is called a Rule 11 evaluation, for the Arizona Criminal Rule of Court that governs competency determinations.

In the Maricopa County justice system, Rule 11 was so well-known that it became a colloquial expression, as in “My attorney said I should go Rule 11 to see if it can get me off [criminal charges].” Unfortunately, Rule 11 was not a promising environment for Ruben or anyone else unlucky or gullible enough to be there. Think of George Orwell’s “1984” or Lewis Carroll’s “Alice in Wonderland.”

You see, Ruben’s attorney triggered a cumbersome and lengthy evaluation process. Ruben had to wait in jail for a court-appointed expert to prescreen him and determine whether he was appropriate for an evaluation. In other words, Ruben had to wait for an evaluation of competency to determine whether he needed an evaluation for competency. Chalk up at least 7 to 10 days for the prescreen evaluation.

As in about 75 percent of all referrals, the prescreen evaluation showed that Ruben needed to be evaluated for competency. This meant that Ruben had to wait for the court to schedule a status conference and appoint a psychiatrist and psychologist to perform a full Rule 11 evaluation. At that time in Maricopa County, the evaluators were contract providers who would arrange to meet with Ruben, review his records and write a recommendation to the court. Add another 60 to 90 days for the recommendation to land on the court’s desk.

Three Possible Findings
A competency evaluation typically leads to one of the following three recommendations:

1. Competent. This finding would mean Ruben was capable of understanding his charges. The court would assign his cases back to a trial judge without any further evaluation.

2. Incompetent/restorable. This finding would mean that although Ruben was not capable of understanding his charges, his condition was treatable. In the spring of 2003, this would mean committing him for treatment at the Arizona State Hospital.

3. Incompetent/not restorable. This finding would mean that Ruben was not capable of understanding his charges and that he could not be treated or “restored” to competency.

The evaluators in Ruben’s case picked not one but two of the recommendations; one said he was incompetent/not restorable and the other said he was incompetent/restorable. This meant that Ruben had to wait for a third evaluation, a tiebreaker. This drastically delayed Ruben’s case, adding about 45 to 60 days to his stay in the jail.

By this time, Ruben had waited in line for the court to consider the prescreen report, appoint the initial evaluators and then appoint a third evaluator. In all, Ruben had to wait six months before the court could determine whether he needed competency restoration treatment. Already, Ruben’s incarceration was longer than his likely sentence for disorderly conduct and trespassing.

The tiebreaker evaluation found Ruben was incompetent but restorable. The court promptly committed Ruben to be treated at the Arizona State Hospital.

But Ruben would not be treated soon. His name was placed on a list of 50 inmates who were waiting for an open bed to commence treatment at the hospital. This meant Ruben would likely wait another 60 to 90 days.

State Hospital was no picnic for mentally ill patients like Ruben. The hospital did not classify or restrict mobility of inmates based on their dangerousness or the nature of their charges. Ruben would be placed in the same dormitory setting as dangerous inmates who had skillfully faked a mental illness to avoid trial and sentencing. These patients occasionally attacked and injured other inmates and hospital staff.

Treatment at State Hospital was expensive. The average cost to restore a Maricopa County inmate was about $30,000. Multiply that cost by 250 inmates for the fiscal year and the full cost for Maricopa County restorations was $7,500,000.

The county had been relatively indifferent to this cost because the state paid half of the bill. But the 2003 legislature decided to eliminate the subsidy to make up for shortfalls in the state budget. In the 2004 fiscal year, Maricopa County projected that 300 inmates would need restoration services. This demand, coupled with elimination of the state’s subsidy, threatened to increase Maricopa County’s costs by $5,750,000.

Exploring the Concepts
Many excellent articles and legal opinions have explored and debated the concepts involved in legal competency. The authorities generally agree that legal competency concerns certain fundamental rights in the United States judicial system. For example, a defendant accused of crime is entitled to competent counsel under the Sixth Amendment to the Constitution. This right to effective assistance of counsel means very little if the defendant is mentally incapable of using that counsel in the criminal case. Also, the Sixth Amendment provides that a defendant is entitled to know the nature of her charges. This right is meaningless if the defendant is mentally incapable of understanding her charges.

The Sixth Amendment also guarantees the accused the right to a speedy and public trial. This typically means that the court must meet legal deadlines to resolve the criminal trial as expeditiously as possible.

But speedy trial rules do not apply to a competency determination. So unless the courts and policy makers address competency in a timely manner, incompetent jail inmates will be effectively disenfranchised. Justice will be denied for the inmate who, like Ruben, is charged with a minor offense, needs mental health treatment and is unable to advocate for better treatment. All of this would happen for the cause of protecting Ruben’s constitutional rights. In such cases, justice resembles “Alice in Wonderland” and courts do not like it.

Award-Winning Solution
The Maricopa County Board of Supervisors addressed the problem on June 15, 2003, and provided funds to restore inmates in the county jails. County staff established a forensic team within the Department of Correctional Health Services (CHS) composed of a psychiatrist, psychologist and three masters-level social workers.

The county developed working relationships with the county sheriff, superior court and public defenders. The presiding judge of the Superior Court authorized CHS to restore inmates on the State Hospital waiting list and worked with CHS to change court forms.

CHS implemented the Restoration to Competency (RTC) program on August 15, 2003, less than 60 days after funding by the Board of Supervisors. Social workers contacted each inmate, performed a psychosocial workup and administered a preliminary competency examination. A psychologist met each inmate and evaluated the inmate’s condition. The program employed standardized tests to identify the inmates’ cognitive deficits and strengths. The team used this information to develop a restoration plan tailored to each inmate’s needs.

In the early months of the program, the forensic team used jail staff psychiatrists to prescribe medications. The forensic team met weekly to review and discuss all the cases, assess each inmate’s progress and make adjustments to the restoration plan. By October, staff began attending all court competency proceedings to keep court communication at maximum levels. This process kept the staff up-to-date on all time-sensitive matters.

By late November, the program hired a psychiatrist and added a psychologist and three masters-level social workers to increase the program’s capacity.

By December, the program had diverted 63 cases from the hospital, saving the county more than $2,000,000. The waiting list shrank from 67 inmates in November 2003 to 38 in January 2004. Waiting time for treatment decreased from 90 days to less than 60 days.

By July 2004, Maricopa County assumed virtually all restoration cases and brought all restoration costs under budget, including costs of State Hospital admissions. The Maricopa County RTC program received a National Association of Counties 2004 Achievement Award “in recognition of an innovative program which contributes to and enhances county government in the United States.”

The Maricopa County RTC experience suggests that an organization can adopt innovative solutions to manage and control its costs. Providing services in the jail allowed the county to implement management strategies that improved timeliness and effectiveness of the services. It proved that customized services for the mentally ill could be cost-effective.

In the meantime, the rights of inmates, like Ruben, are better aligned with the spirit of the law.

* This person is fictional.

— About the author: Lindy Funkhouser, JD, is the director of Maricopa County Correctional Health Services, Phoenix, AZ.

[This article first appeared in the Winter 2007 issue of CorrectCare.]

"Streamline" Immigration Hearings unlawful: Rule 11

From No More Deaths:
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Dear No More Deaths Supporters:

Below is great news about ending Operation Streamline!  The 9th Circuit Court ruled these trials illegal and have been told they must stop holding these hearings!!  This is great news; hopefully, these trials (held in Tucson daily) will end immediately. 

“The problem generated by the massive caseload on the court understandably led the court to adopt a shortcut. Abstractly considered, the shortcut is not only understandable but reasonable. 

The shortcut, however, does not comply with Rule 11. We cannot permit this rule to be disregarded in the name of efficiency nor to be violated because it is too demanding for a district court to observe. We act within a system maintained by the rules of procedure. We cannot dispense with the rules without setting a precedent subversive of the structure.

Accordingly, on this challenge by an intrepid federal public defender to the Tucson court’s taking of pleas en masse, we hold the procedure to be contrary to Rule 11.”

 http://www.ca9.uscourts.gov/datastore/opinions/2009/12/02/08-10396.pdf

Or, read the AP article:

http://www.google.com/hostednews/ap/article/ALeqM5jsa6vsG4Y_9Cb4OSUPCpYoYtCLJQD9CBIJ200

Court: Mass criminal immigration hearings unlawful

By ALICIA A. CALDWELL (AP) – 12 hours ago

EL PASO, Texas — Immigrants who have been arrested in zero-tolerance zones along the Mexican border must not be tried at mass criminal immigration hearings because the proceedings violate federal rules, an appeals court ruled Wednesday.

A three-judge panel with the 9th U.S. Circuit Court of Appeals in San Francisco ruled that a federal court in Tucson, Ariz. — where mass hearings have been held for defendants arrested by U.S. Border Patrol agents — had violated Rule 11, which requires that each defendant be read their rights and be given an explanation of what a guilty plea means.

Any immigrants found in zero-tolerance zones established along the Mexican border under Operation Streamline can be arrested and prosecuted in a federal court on charges of illegal entry.

The program was initially credited with curbing illegal border crossings, but critics have long argued that immigrants are pushed through the system without being given a chance to fairly defend themselves or understanding the proceedings.

Most immigrants scooped up under those circumstances answer "yes" en masse when asked if they understand their rights and the consequences of pleading guilty, according to the ruling posted on the court's Web site. Most are not individually questioned by the judge, it said.

In a 19-page ruling, U.S. Circuit Judge John T. Noonan, said the mass hearings were understandable, given the number of immigration cases.

"Abstractly considered, the shortcut is not only understandable but reasonable," Noonan wrote in the ruling. "The shortcut, however, does not comply with Rule 11. We cannot permit this rule to be disregarded in the name of efficiency nor to be violated because it is too demanding for a district court to observe."

Jason Hannan, Tucson's assistant federal public defender who argued the case, did not immediately respond to a request from The Associated Press for comment.

Arizona U.S. Attorney Dennis K. Burke, whose Tucson office handled the appealed cases, said some procedures would be changed as a result of the Appeals Court decision.

"While changes will have to be made to some change-of-plea proceedings to comply with the Ninth Circuit's decision, we are confident that the decision will not adversely impact our ability to prosecute individuals who violate the laws of the United States," Burke said in a written statement.
Copyright © 2009 The Associated Press. All rights reserved.

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Laura Ilardo
No More Deaths-Phoenix
(602)818-5447
www.my.calendars.net/nomoredeaths