WHAT’S WRONG WITH THE MENTALLY DISORDERED OFFENDER LAW?
AN ANALYSIS BY FAMILIES FOR THE ETHICAL PSYCHIATRIC TREATMENT OF PATIENTS AND PRISONERS (FEPTOPP)
Preliminary note: All prisoners, inmates, and patients are referred to as male, for the purpose of simplicity, and due to the fact that female MDO’s are rare.
- THE PLAYERS
- THE TERMS
- LEGISLATIVE DUPLICITY
- CONSTITUTIONAL VIOLATIONS
- THE MISREPRESENTATION OF MEDICAL TREATMENT
- BUREAUCRATIC IGNORANCE & INCOMPETENCE
- BUREAUCRATIC ARROGANCE & MALICE
- PUNITIVE BUREAUCRATIC PRACTICES
- LEGAL PRETEXTUALITY
- HARMFUL CONSEQUENCES
- FOUNDATION FOR GREATER HARM
1. THE PLAYERS
CDCR – The California Department of Corrections and Rehabilitation runs the state’s 39 prisons.
DMH – The California Department of Mental Health runs the state’s seven mental hospitals.
BPT – The California Board of Prison Terms controls who gets out of prison and the mental hospitals and what the terms of parole are.
CONREP – The Conditional Release Program run by the counties supervises parolees after they have been paroled from mental hospitals to outpatient programs run by contractors to the state.
2. THE TERMS
IATRAGENIC – Damaging effect caused to a patient by the treatment of a physician.
MDO – Mentally Disordered Offender: the legal term used to describe a convicted felon who has been found by the state to meet the requirements of the MDO law (Sections 2960-2981 of the California Penal Code).
QAWI ORDER – A legal Order issued by the California Superior Court authorizing the DMH to forcibly drug a patient at a state hospital for the purposes of control and treatment.
SANISM – Discrimination against, and oppression of, people who are labeled as mentally ill, based upon historical stereotypes, common misconceptions, and ignorance.
PRETEXTUALITY – Acceptance by the courts (either implicitly or explicitly) of sanist testimonial dishonesty (especially by expert witnesses), and the rendering of meretricious decisions that result from said testimony.
The following information has been gathered from the result of extensive FEPTOPP research and experience during the past five years with prisoners, families of prisoners found to be Mentally Disordered Offenders, and with the various jails, prisons, hospitals, lawyers, bureaucracies, advocates and courts involved in the MDO process.
The MDO law is a little-known law written by the California legislature in 1986. It is little known because there is no money to be made in the practice of this branch of law – the typical MDO is at the bottom of society: without funds, without friends, without representation, and all the while stigmatized and vilified on a daily basis in the mass media. These are people truly at the bottom of the social order.
The MDO law designates prisoners convicted of certain “violent offenses” as Mentally Disordered Offenders if, upon recommendation of the prison authorities (CDCR and BPT), they are examined by two psychiatrists or psychologists from DMH and found to meet six (6) specific criteria.
Those criteria are:
1) The prisoner has a severe mental disorder;
2) The mental disorder was “one of the causes or was and aggravating factor” that caused him to commit one of the designated “violent offenses”;
3) The prisoner received treatment for the mental disorder for at least ninety (90) days in the one year prior to being eligible for parole;
4) The prisoner represents a “substantial danger of physical harm to others”;
5) The prisoner’s “severe mental disorder” is not in remission and cannot be kept in remission without further treatment;
6) The prisoner committed one of the following crimes;
- Robbery with a weapon
- Carjacking with a weapon
- Sodomy by force
- Oral copulation by force
- Lewd acts with a child under 14 years old
- Continuous sexual abuse
- Arson which constituted a threat to others
- Any felony with a firearm
- Attempted murder
- Attempted murder with explosives
- Sexual penetration with force;
- Any other crime where force or violence was used or caused serious injury.
NOTE: The original law as passed did not contain the “dangerous” criterion (criterion 4, above). The law was immediately challenged (People v. Gibson, 1988) and thrown out by the California Supreme Court, due to the legal discrimination against these persons labeled MDO as compared to persons civilly committed who hadn’t committed crimes. The law was re-written and re-instituted in 1989 with the “dangerousness” clause added.
If found to be an MDO, the prisoner, instead of being released for supervised parole, is sent to a state mental hospital for “treatment” of his severe mental disorder during his parole period and beyond, if he is not able to convince the psychiatrists at the state mental hospital that he is “in remission” from his “severe mental disorder”. He can appeal the BPT finding of his MDO status in Superior Court of the county where the mental hospital is located. His appeal is considered to be a “civil” matter, not a “criminal” matter, because the state claims they are helping the prisoner by providing medical treatment, not punishing the prisoner. This is true for all proceedings thenceforth for the prisoner – a feature written into the MDO law that has important negative legal consequences for the prisoner (see below).
If he loses the appeal, the prisoner must wait another year before another hearing is held by the BPT, which he can then appeal again. This process can go on, theoretically, until the prisoner dies of old age in the mental hospital.
If the prisoner is ever found to be “in remission” or “no longer a danger to others”, he can be released to CONREP and sent to an outpatient program (in the community where he was convicted of his crime) to be supervised by the CONREP staff. If he commits the slightest violation of the CONREP rules, or if the CONREP staff claims that he committed any act that can be attributed to his mental disorder, he can be sent back to a state mental hospital or prison without a trial. This re-cycling process can go on, and usually does, until the prisoner is near death or dies.
4. LEGISLATIVE DUPLICITY
The state legislators declared at the time of passing this law that it was expressly for the purpose of protecting public safety through “an effective system of inpatient and outpatient services for Mentally Disordered Offenders” (see DMH website statement).
This is good public relations for politicians, who are best seen in a positive light when protecting the citizenry. However, this law rests on prejudice and bigotry aimed at persons labeled “mentally ill”, based on the false assumption that these persons are more likely than other persons to commit violent crimes. Research into this area is, at best, inconclusive, (see, e.g., MacArthur Foundation Study in Archives of General Psychiatry, May, 1998). Taken as a whole, research dispels this widespread notion created and perpetrated by powerful economic forces in our society that benefit from the misperception. These forces include politicians, drug companies, state bureaucrats, prison personnel, psychiatrists and psychologists, advocacy groups funded by drug companies like National Alliance for the Mentally Ill [NAMI] and the media.
The driving force behind this law is sanism, defined as discrimination and oppression against people who have, or who are labeled or perceived as having, a mental illness (see, e.g. The Hidden Prejudice: Mental Disability on Trial, by Michael L. Perlin, 2002). By defining a problem based upon a prejudicial notion and then punishing the offending subgroup associated with that problem, politicians succeed in making themselves look like effective administrators of public policy.
In California, the MDO law is contained in the Penal Code (P.C. 2960-2981), but it is designated as a Civil Law when it comes to the prisoner’s legal rights (P.C. 2966[b]). This is a key aspect of the law, and is based upon the dishonest proposition that the prisoners incarcerated under the MDO law are “patients” who are undergoing “effective treatment” for their “medical conditions”. The politicians are traversing tricky ground here, and they know it. Civil law contained in the Penal Code is unusual, because the rights of prisoners are much broader that the rights accorded under civil procedures. In criminal law, the individual is confronted by the all-powerful state, and has need of legal protections, as defined in the Bill of Rights and subsequent amendments to the U.S. Constitution. Civil law, where persons face each other over disputes regarding property, doesn’t contain the same provisions protecting persons from abuse by the state. So to define the MDO statute as Civil Law doesn’t fit the profile for Civil Law, since the prisoner is facing the state as adversary and yet has been denied his Constitutional protections.
5. CONSTITUTIONAL VIOLATIONS
By declaring the MDO law a civil statute when it comes to the legal rights of MDO prisoners, the politicians have legalized the removal of the civil rights of these citizens. This maneuver has the effect of turning the court proceedings for these persons into kangaroo courts, where the prisoner has no right to confront witnesses against him, no protection against double jeopardy, no protection against hearsay evidence, no protection against due process violations, and no guarantee of a jury trial (since his lawyer – most often a public defender – can overrule his request for jury trial). Thus the prisoner is left defenseless against a court adversary (the state) armed with all the power and resources necessary to convict him upon the flimsiest of evidence. These proceedings are further marked by rampant pretextuality (legal practices sanctioning the use of sanist stereotypes and prejudices – see more below under LEGAL PRETEXTUALITY) which further erode the prisoner’s ability to defend himself. Taken together, the removal of his defenses and the unacknowledged prejudices he faces from the courtroom actors make it practically impossible for the prisoner to prevail in court and thus extricate himself from the trap created for him by the MDO law. The defendant is routinely denied his constitutional rights under the fourth, fifth, sixth, eighth, and fourteenth amendments to the Constitution;
6. THE MISREPRESENTATION OF MEDICAL TREATMENT
The concept of the Mentally Disordered Offender Law incorporates the dual notion of: 1) Protecting the citizenry from violently insane criminals; while at the same time 2) Humanely providing medical treatment to the criminals to help them re-enter society in their new-found state of “remission”.
The tragic failure of this policy is apparent from the statistics issued by the state itself: 70% of the prisoners return to prison or the state hospital system. (These figures are subject to some interpretation, depending on whether first time recidivists or multiple recidivists are counted). The recidivism rate completely unmasks the validity of the first assumption: that the law protects the citizenry. A 70% failure rate means that a considerable number of citizens have been (at least theoretically) threatened or harmed by prisoners who were released as “in remission”.
It is a telling commentary that this information is barely mentioned in passing in public discourse, indicating a popular acceptance of the notion that these persons are: a) Not treatable; and, therefore, b) Should be locked up for life. The key to these perceptions lie within the nature of psychiatry itself and in the relation of psychiatry to the law. Psychiatrists define behavior as disease. The courts accept the legitimacy of this practice, and designate psychiatrists as “experts” who perform the gatekeeper role of decreeing who is “mentally ill” and who is not, as well as who is “in remission” and who is not, and also, who is “dangerous” and who is not. The mutually self-serving arrangement between the courts and psychiatrists is never examined in any public forum. The unscientific methodology of psychiatry is accepted without question by the law, despite the legal fiction that all expert testimony should be science-based. Objections to the unscientific foundation of psychiatry are relegated to the notion of “anti-psychiatry”, a sub-set of the “conspiracy theories” supposedly subscribed to by unstable persons in the body politic. In this way, no rational discussion of the Mentally Disordered Offender Law is ever countenanced, and the policy and its mechanisms continue unchecked, without any boundaries or accountability. Since these prisoners are overwhelmingly indigent, no defense is available to them since there is no market for their legal defenders. They are left to the threadbare assistance of public defenders and court appointed lawyers, who routinely handle their cases with a minimum of resources and commitment. (In San Luis Obispo County, for instance, private attorneys are paid a flat rate of $400 to handle each prisoner’s appeal of the MDO commitment process.)
The damage done to the prisoners is twofold: 1) Whatever mental problems they have are not cured, nor even effectively managed; and 2) The drugs they are forced to take cause a wide range of physical harm (metabolic syndrome, diabetes, heart dysfunction, liver disease, tardive dyskinesia, tardive akathisia, tardive dysphrenia, dysphoria, severe weight gain, etc. etc.) This evidence completely discredits the second premise of the law, i.e., to humanely treat the prisoner medically to help him re-enter society. The damage done to the prisoners’ bodies is hidden, ignored and mis-reported, covering up the underlying assumption: damage to the criminal is acceptable in order to maintain the safety of the public.
7. BUREAUCRATIC IGNORANCE AND INCOMPETENCE
We will be generous and put the following practices down to ignorance and incompetence, rather than deliberate administration policy.
Poor communication with other agencies. It is necessary for the DMH to coordinate activities and policies with CDCR, BPT, CONREP, the courts, various police agencies, and the legislature. The state of these interactions is abysmal.
To give a couple of examples: Prisoners are transferred to a DMH hospital from a CDCR prison. Prisoners are typically put on the MDO status late in their prison sentence, when they are close to parole. Often, they aren’t told what is happening to them when they are interviewed by psychiatrists or psychologists at the state prison. Then, on the day when they are expecting to be released on parole, they are suddenly transferred to a state mental hospital run by DMH. Their shock and despair is often reflected in their initial reaction to being transferred, making it easier for the DMH doctors to evaluate them upon arrival as “suffering from a severe mental disorder”. Anyone, expecting to be released, suddenly finding out that they are now subject to a lifetime of imprisonment and forced drugging, will exhibit symptoms of mental and emotional stress. Thus the poor communication with other agencies works to the detriment of the prisoner, and becomes part of the apparatus of ensnarement through the turf wars between fiefdoms in the state bureaucracy. The demeanor of the prisoner, understandably upset and angry over his unexpected new circumstances, is noted by the hospital authorities and duly noted in his file, justifying the “mentally disordered” label now hung on the prisoner for life.
Another example of poor communication is illustrated by the relationship between the treating psychiatric staff at the state hospitals and the officers of the court (District Attorneys, Public Defenders, and Judges). The prisoners find their affairs bifurcated into two worlds: the Legal World, and the Medical World. An example best illustrates this dilemma (taken from real life). A prisoner has been diagnosed as delusional. The doctors come to that conclusion because the prisoner insists that he is being persecuted by law enforcement officers who falsely charged him with a crime, the prison authorities who designated him to be an MDO, and the hospital administrators who certify the actions of the law enforcement authorities. The medical staff, without examining the evidence, concludes that the prisoner is delusional. They take the position that the prisoner is delusional because the Legal World has placed the prisoner in the hospital, and therefore he must be sick. They refer the prisoner to his lawyer to talk about his legal problems. In other words, if the courts somehow were to conclude, through the legal process, that the prisoner has been wrongfully charged and convicted, then the prisoner is then suddenly declared to be sane, though his behavior and statements have not changed at all! This complete lack of communication between the medical personnel treating the patient and the law enforcement authorities punishing the prisoner consistently works to the detriment of the prisoner/patient.
Failure to meet the statutory requirements for legally incarcerating the prisoner. MDO prisoners are legally entitled to a yearly review of their commitment by the courts. These hearings are routinely held months after the deadline for their court date has passed, and the delays are due entirely to the failure of the DMH authorities to process the paperwork in a timely fashion. The courts never penalize the DMH for this incompetence and the resultant loss of freedom for the prisoner.
Failure to inform the families of the prisoners of their right to advocate for their family member. The MDO law contains a provision that allows for a family member or other advocate to attend the monthly treatment team meetings to evaluate the prisoner’s progress towards being released. The MDO staff does nothing to encourage this participation.
Failure on many of the daily requirements for administering therapeutic care to the prisoners: violation of timely mail delivery; failure to investigate complaints of staff abuse of prisoners; failure to provide sanitary facilities per state law; etc., etc. These failures, on a massive scale, were the basis for the Federal Court issuing an Order giving the DMH three years to clear up these problems or face closure. As of the date of this paper, DMH has failed to meet those requirements.
8. BUREAUCRATIC ARROGANCE & MALICE
It is difficult to tell where bureaucratic ignorance and incompetence leave off and malice and arrogance begin. Since DMH is subject to practically no legitimate oversight, the level of malfeasance is very high. There are few consequences for those administrators who break the law, mismanage, and trample on the rights of the prisoners. Certainly the administrators of the hospitals bear out, in tragic relief, the observation by Lord Acton, “Power corrupts, and absolute power corrupts absolutely.”
We put the following practices down to arrogance and malice.
Systemic falsification of records. Notes, correspondence, reports, court orders, and all manner of evidence vital to the prisoners’ records are routinely removed, destroyed, inserted after the fact or after needed for court appearances, re-inserted after cover-ups have been completed, altered, and otherwise fraudulently managed to hide routine violations of the law carried out by personnel within the hospital administrations. It is within the voluminous records kept on each prisoner (average: 3.5 pages per prisoner per day) that the secrets of how these prisoners are mistreated are held. However, these records are routinely falsified to present a record of the prisoner’s behavior that legitimates the aims of the administrators. The records can be visualized as being in a constant state of flux, depending in their daily content on the current legal status of the prisoner.
Defiance of the law. This practice is also a daily occurrence, especially in the matter of illegal forced drugging of prisoners. State law requires a Superior Court Order be obtained before forcibly drugging prisoners. The hospitals violate this law routinely, without fear of consequences.
Perjury on the part of staff members to cover up crimes and abuses. False events are conjured up to provide justification for prejudicial administrative actions. False statements are entered into prisoners’ records to misrepresent the context of events. Interviews with prisoners and their families, as well as DMH personnel who witness these events but are fearful of retaliation for reporting them, all confirm that these practices are widespread. Nepotism and favoritism within the administrative practices of the hospitals reinforce these behaviors.
Punishment of those who object. This important subject is treated separately in detail below.
9. PUNITIVE BUREAUCRATIC PRACTICES
Any person, whether prisoner, staff member, advocate, or family member who speaks out or takes any action whatsoever to oppose any of the abuses detailed herein is systematically punished in such a manner as to intimidate others in an attempt to stifle and suppress such opposition. For staff members, this can mean transfers, write-ups, harassment, creation of an unfriendly and threatening work environment, ostracism, and firing. It is made clear from the upper echelons of the hierarchy that dissent will not be tolerated. Employees are warned not to reveal any aspects of their jobs to outsiders.
Prisoners fare even worse, and face prolonged forced drugging, restriction of movement, transfer to more inhospitable units, falsification of records, creation of circumstances and false allegation designed to transfer the prisoner back to prison, and placement with dangerous prisoners who might attack them.
Family members who insist upon advocating for their loved ones are summarily dismissed from treatment team meetings, slandered in treatment plan records, shut out of any communication with treatment staff, and hopelessly witness their loved ones being punished for their attempts to advocate for them.
The combination of the above practices makes dissent almost unheard of at the state hospitals. Persons who persist in their dissent are isolated by every means possible, and every method imaginable is used to ensure that their dissent and complaints are not picked up and repeated by others. Those who persist may find that their tenure at the facility is very short if they are staff, and very long if they are prisoner or family member.