THE MENTALLY DISORDERED OFFENDER LAW AND ILLEGAL FORCED DRUGGING:
A HISTORY OF OFFICIAL DEFIANCE OF THE LAW, ASSAULT & BATTERY, PERJURY, FALSE IMPRISONMENT, TORTURE, WRONGFUL DEATH, AND COVER-UP
A white paper produced by
Families for the Ethical Psychiatric Treatment
Of Patients and Prisoners
Revised January 27, 2013
Setting the Stage – Passage of the Mentally Disordered Offender Laws
In the early 1980’s California became a leader in the passage of laws aimed, ostensibly, at providing state medical treatment for persons deemed mentally ill who had been convicted of violent crimes. The statutes created by the California Legislature in 1985 were titled the Mentally Disordered Offender Law.(1)
Under that law (and similar legislation passed since that time in dozens of other states), prisoners convicted of violent felonies can be incarcerated in state mental hospitals run by the Department of State Hospitals (DSH). This imprisonment is imposed as a potential life sentence after the prisoner has served his time in state prison, once he has been classified as a Mentally Disordered Offender (MDO).(2) MDO’s are also routinely forced to take powerful neuroleptic (‘brain seizing’) drugs by DSH psychiatrists as part of “treatment” to bring them to a state of “remission” for their diagnosed “mental disorder”. (All words in quotation are taken from the California MDO law).
In 2004, one such MDO, Kanuri Surgury Qawi, challenged his forced drugging by the DSH in Superior Court. He eventually won a decision issued by the California Supreme Court requiring the DSH to obtain a court order from the Superior Court before forcibly drugging an inmate.(3) Despite this ruling, the DSH continues to forcibly drug state mental hospital patients without obtaining the required court orders (Qawi Orders).(4)
These actions by the DSH are illegal and constitute criminal assault and battery on the inmates, but are only the beginning. Perjury, false imprisonment, torture, early death of the inmates, and the cover-up of all these felonies unfold on a massive scale from that point forward.
The story of these crimes is told for the first time here as the result of years of investigation and analysis by FEPTOPP in collaboration with inmates, their families, lawyers, anonymous state officials and research into official records.
The Process of becoming a Mentally Disordered Offender
Any person convicted of a violent crime (all the specific crimes are listed in the statute, together with a “catch-all” provision that can be broadly interpreted), where a mental disorder “was one of the causes or was a contributing factor” in the commission of the crime, can be found to be an MDO. The process does not begin at the time of trial and conviction for the crime, however. It begins long after the crime was committed, after the trial was held, and the prisoner convicted. It begins when the convicted prisoner is ready to leave prison on parole. The process begins within the California Department of Corrections and Rehabilitation (CDCR) – the prison system. If the prisoner has had any problems inside the prison system, CDCR officials can recommend that the convict be evaluated to determine whether the MDO criteria have been met. This evaluation takes place in the prison and is performed either by two state employed psychiatrists/psychologists or by contractors hired by CDCR to perform the task.
The evaluation process consists of review of the convict’s records and an interview with the convict. Reports are then prepared and each of the six (6) criteria for an MDO status must be met in order for the convict to be found to be an MDO [see footnote (2) for the six criteria]. If found to meet the criteria, instead of being released on parole the convict (now legally no longer a convict, but rather a “patient” undergoing therapeutic treatment) is transferred to one of five state mental hospitals. Once there, the patient is once again examined by psychiatrists/psychologists, this time employees of the Department of State Hospitals (DSH) and “diagnosed” with a mental disorder or disorders [one or more of the 365 disorders found in the Diagnostic and Statistical Manual of Mental Disorders (DSM) – the bible for the psychiatric, legal and health care systems]. The convict is then arraigned before a deputy commissioner of the Board of Parole Hearings (BPH). In this quasi-legal proceeding the convict has none of the rights that he had in court, because the entire process has been labeled under the MDO law as a Civil matter, not a Criminal matter [because the convict has become a “patient”, and is being “helped” by the state, and therefore has no need (supposedly) of the rights of an accused criminal].
Once the BPH has affirmed the judgment of the DSH psychiatrists, the newly appointed “patient” is committed to the state mental hospital. He is to be confined there until the forensic psychiatrists at the hospital deem that he is ready to be released by virtue of attaining the state of “remission” of his mental disorder or disorders. He is entitled to a court hearing once a year to try to attain his release, but, in reality, unless he has convinced the hospital forensic psychiatrists (not his treating psychiatrist – who may have a different opinion), the court will not release him. The court relies on the opinion of the forensic psychiatrists absolutely.
There are many things wrong with this process – too many to examine in the scope of this paper, which focuses on the forced drugging of MDO’s. For a full exposition of the problems with the MDO legal/medical process, see “What’s Wrong With the MDO Law?” (pages 1-26).
Illegal Forced Drugging Leads To Prolonged False Imprisonment
MDO inmates who refuse to take the neuroleptic drugs prescribed by the DSH psychiatrists are labeled as ‘lacking insight’ into their diagnosed mental disorder. But the prisoners may have very rational reasons to refuse drugs that cause a variety of severe physical disorders and shorten their lives by an average estimated at between 12 to 20 years.(5) It is because of the severe health effects of the drugs that the California Supreme Court handed down the Qawi ruling in the first place, which the DSH opposed in court. Nevertheless, refusal to take the drugs is routinely offered as proof positive by DSH forensic psychiatrists in court hearings that the inmate has a mental disorder, and, further, doesn’t even understand that he has a mental disorder. He is thus declared to be “not in remission” by DSH psychiatrists, and is therefore not eligible to be released from the mental hospital per the provisions of the MDO law.(6)
Up until this point, then, the prisoner has been classified as an MDO by prison authorities and the DSH psychiatrists, sentenced by the BPH commissioner, confined to a prison-like hospital, illegally forcibly drugged, and then declared to be unfit for release because he is being forcibly drugged. Thereafter, the forcible drugging and false imprisonment can continue indefinitely under provisions of the MDO law. The cumulative effects of the drugs lead to multiple health problems for the inmates, the most serious of which are collectively labeled as Metabolic Syndrome: diabetes, pancreatitis, liver failure, multiple organ failure, cardiac arrest, and premature death.(7) In addition, severe conditions such as tardive dyskinesia (permanent uncontrolled twitching and grimacing) destroy the quality of life for these prisoners.
Cover-Up Of The Consequences
When death occurs for an inmate in a state mental hospital, state laws require that the county coroner perform an investigation into the cause of death.(8) These laws are also routinely ignored in a conspiracy between the DSH officials, coroners, county sheriffs, and District Attorneys at the county level.(9) State law enforcement authorities, when notified of these breaches of the law, refuse to act.(10) The complete train of events now looks like this:
1) The convicted criminal, having served his allotted time in state prison, is examined by CDCR psychiatrists, accused of having a mental disorder, and sent to a state hospital instead of being paroled back to the community;
2) Once at the state hospital, he is examined again, this time by DSH psychiatrists, confirmed to be an MDO, given a psychiatric diagnosis or diagnoses, and sent before a BPH hearing officer, who confirms the MDO status and sentences him to indefinite confinement at the DSH hospital;
3) At the state hospital, DSH psychiatrists assault the inmate by illegally forcing him to take injurious drugs as the mainstay of their “treatment”, thereby committing assault, battery, and battery upon a dependent adult;(11)
4) When and if the inmate appeals his case in yearly appeals, DSH forensic psychiatrists lie under oath in court and tell judges and juries that they have obtained a court order to forcibly drug him, thereby committing perjury;(12)
5) As a result of these lies, DSH forensic psychiatrists convince the court that the inmate is not eligible to be released, thereby committing false imprisonment;(13)
6) As a result of the ongoing false imprisonment, DSH confines the inmate for additional years, all the while forcibly drugging him with substances that cause severe physical disabilities leading to early death, thereby committing torture;(14)
7) If the inmate dies while still in custody, the DSH authorities, county officials and state law enforcement authorities illegally conspire to avoid investigation into the cause of his death, thereby covering up the crime.(15)
It is past time these facts come to light and public opinion is brought to bear demanding not only reform of the MDO laws, but uniform enforcement of the case law developed to defend the rights of these prisoners. And it is time that all violators of the law are brought to justice – including those county and state officials who are sworn to uphold the constitution and state law, yet violate their oaths on a daily basis, resulting in the torture and early death of patients who have been committed to their care. The continued unaccountable illegal felonious activities of these officials and public employees cause widespread cynicism and disregard for the rule of law among the populace, and undermine the foundations of our democratic ideals. Furthermore, the attitudes and practices engendered by these activities form the basis for a more widespread abuse of ever-widening groups of citizens under cover of law – the foundation of a police state.
(1) California Penal Code Sections 2960-2980.
(2) P.C. 2962 defines the criteria for classification of a prisoner as an MDO:
(a) The prisoner has a severe mental disorder that is not
in remission or cannot be kept in remission without treatment.
(b) The severe mental disorder was one of the causes or was
an aggravating factor in the commission of a crime for
which the prisoner was sentenced to prison.
(c) The prisoner has been in treatment for the severe mental
disorder for 90 days or more within the year prior to the
prisoner’s parole or release.
(d) (1) Prior to release on parole, the Department of Mental Health
And Department of Corrections & Rehabilitation examine
the prisoner using state psychiatrists or psychologists and find
that he meets the criteria above and represents a substantial
danger to himself or others.
(2) If the state examiners cannot agree, the Board of Prison Terms
orders further examination by two independent professionals
who must agree on the above criteria.
(e) The crime referred to in (b) above must have resulted in a
determinate sentence in prison, and the crime must have been
a violent crime as defined by various penal code sections.
(3) In Re Qawi, 32 Cal.4th 1, 24, (2004).
(4) This fact is based on a memo received from Agnes Lintz, J.D., Patients Rights Specialist at the California Office of Patients’ Rights, dated 8/31/09, which states, inter alia,
“As the Qawi case makes clear, California has chosen to require
a court hearing and therefore, a state hospital is violating an
individual’s rights by administering medication in a non-emergency
situation absent a valid court order…. It is the understanding
of the California Office of Patients’ Rights that ASH (Atascadero
State Hospital) has had difficulty in obtaining court orders to
medicate and that ASH feels that they may involuntarily medicate
an individual unless a court orders that an individual not be
medicated. The law is clear that the presumption is that an
individual may make their own medical decisions, and that
involuntary medication may not occur absent an emergency or
court order”. (page 5)
This finding was made after extensive research into the records of numerous inmates, and was confirmed by unofficial statements of various Patients’ Rights advocates, inmates and family members. Furthermore, the DSH was the respondent to the original Qawi filing and made every attempt to obstruct and invalidate the ruling, including appealing it to the California Supreme Court, so their opposition to the ruling is a matter of record. DSH defiance of the Qawi ruling is therefore a matter of long-standing fact, and can ultimately be confirmed by research into the medical records of the thousands of inmates that have been incarcerated in the state mental hospitals since 2004.
(5) See Robert Whitaker, Mad in America: Bad Science, Bad Medicine and the Enduring Mistreatment of the Mentally Ill (2002) for a full exposition of this evidence.
(6) See California P.C. 2970.
(7) See, e.g., the FDA ‘black box’ warning label on the neuroleptic drug Zyprexa (Olanzapine).
(8) California Government Code Section 27491 and California Welfare and Institutions Code Section 4137.
(9) An investigation into the circumstances surrounding the deaths of inmates at state mental hospitals is ongoing. Examination of the Death Certificates of inmates who died while in custody indicate various irregularities, including: Transfers out of the state hospital in the few days before death to nearby community hospitals; no coroner investigation or autopsy; no manner of death listed; no state file numbers; and causes of death attributable to neuroleptic drug effects, but not specified as such.
(10)Notification of the San Luis Obispo District Attorney, the San Luis Obispo Grand Jury, the California District Attorneys’ Association and both California Attorney General Jerry Brown and Kamala Harris over a period from October, 2009 to the present have resulted in denial of jurisdiction and refusal to investigate on their parts.
(11)California Penal Code 240 defines Assault: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”
California Penal Code 242 defines Battery: “A battery is any willful and unlawful use of force or violence upon the person of another.”
California Penal Code 243.25 defines Assault on a Dependent Adult:
“When a battery is committed against the person of a… dependent adult as
defined in Section 368, with knowledge that he or she is…a dependent
adult, the offense shall be punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year,
or both that fine and imprisonment.”
California Penal Code 368 defines Dependent Adults: “(a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.
(b) (1) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in subdivision (e) of Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(12) California Penal Code 118 defines Perjury: “(a) Every person who, haven taken an
oath that she or he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath
may by law of the State of California be administered, willfully and contrary
to the oath, states as true any material matter which he or she knows to be
false, and every person who testifies, declares, deposes, or certifies under
penalty of perjury in any of the cases in which the testimony, declarations,
depositions, or certification is permitted by law of the State of California
under penalty of perjury and willfully states as true any material matter
which he or she knows to be false, is guilty of perjury.”
California Penal Code 127 defines Subornation of Perjury: “Every person who
willfully procures another person to commit perjury is guilty of subornation of
perjury, and is punishable in the same manner as he would be if personally
guilty of the perjury so procured.”
(13) California Penal Code 236 defines False Imprisonment: “False imprisonment is
the unlawful violation of the personal liberty of another.” Penal Code 236(d)(1) further states, inter alia, “…unlawful deprivation or violation of the
personal liberty of another includes substantial and sustained restriction of
another’s liberty accomplished through fraud, deceit (and) coercion….”
(14) California Penal Code 206 defines Torture: “Every person who, with the intent
to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury
as defined in Section 12022.7 upon the person of another, is guilty of torture.”
Note 1: California courts have upheld brain damage as “great bodily injury.”
As to Intent, it is clear that DMH officials are intent upon persuading not only the prisoner, but the courts, that the prisoner suffers from a mental illness, and they are also extorting money from the inmate (in the form of his disability payments). Since DMH officials are consciously breaking the law by illegally forcibly drugging the prisoners, their intent, by definition, cannot be characterized as therapeutic or beneficial.
Note 2: Federal law defines torture quite differently. Federal Code Section 2340 defines torture: “(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
2340(a) Offense.— Whoever outside the United States (emphasis added) commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
2340(b) Nothing in this chapter shall be construed as precluding the application of state or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.
The Federal torture law was carefully rewritten during a period in the late 1980’s and early 1990’s to protect the U.S. government from torture allegations arising out of practices developed for the so-called War on Terror. Note that, according to federal law, torture cannot be committed within the territorial boundaries of the U.S. (See “A Question of Torture” by Alfred W. McCoy, Henry Holt & Co., 2006). We believe this law, political in its genesis, is legally indefensible. An act defined as torture on one side of an arbitrary national boundary also qualifies as torture on the other side, regardless of legislation to the contrary.
See also: Tina Minkowitz, The United Nations Convention on the Rights of Persons with Disabilities and the Right to Be Free From Nonconsensual Psychiatric Interventions, 34 SYRACUSE J. INT’L L. & COM. 405 (classifying forced psychiatric interventions as torture).
(15) See U.S. Code 2340(c), above for the conspiracy aspect of the torture statute. Obviously, other aspects of conspiracy are involved when DSH officials and county coroners conspire to break the law regarding the mandatory investigations of inmate deaths occurring in state mental hospitals. Other officials (county District Attorneys, Grand Juries, Public Defenders, and Superior Court Judges) also must be aware of the deaths and cover-ups of the deaths, and are thus implicated in a widespread conspiracy to conceal these criminal activities. Two Attorneys General in California (Jerry Brown and Kamala Harris) have been notified of all of these allegations, backed up by official documents, and have refused to act, and are thus also guilty of covering up these crimes.