By District Judge W. John Brennan
Chief, 2nd Judicial District
We've got a gaping hole in the criminal justice system that is costing taxpayers millions of dollars and causing enormous frustration among police officers, prosecutors, public defenders, corrections officials and judges in the district and metropolitan courts.
The fact that this hole causes so much grief among so many people is not even its most amazing feature. No, the really astounding thing is that it has been there for more than 30 years and yet the public is almost completely unaware of it— until something happens.
In July, Albuquerque police Sgt. Carol Oleksak attempted to arrest a mentally ill man named Duc Minh Pham. He managed to throw Oleksak to the ground, take her gun and shoot her. Pham then walked down the street wildly firing Oleksak's gun over his shoulder until police were forced to shoot and kill him.
In the immediate aftermath, the press revealed Pham's extensive arrest record for non-dangerous property crimes, and the public rightly began to ask: "How can this be? How can a mentally disturbed man like Pham be arrested time after time only to be kicked back on the street by a judge?"
Then, some sarcastically asked, "Is the county jail merely a hotel that an incompetent person can check into— and out of— almost at will?"
As shocking as it may be to the general public, the answer is "Yes."
Therein lies our gaping hole. For the past 31 years, judges have had nowhere to put the mentally incompetent whom psychologists determine are not a danger to others.
This was the unintended consequence of the U.S. Supreme Court ruling Jackson v. Indiana that effectively shut down insane asylums across the country in 1972. When all but a handful of mental hospitals were closed, no new system was created to deal with the "incompetent, but not dangerous."
So, crazy as it sounds (and as crazy as it is) a judge is extremely limited in what he can do with an incompetent person who has broken the law, but has not done so in a "dangerous" way. In the vast majority of cases a judge has no choice but to set the offender free.
What or who is more mentally disturbed— the schizophrenic, or the system that sets him loose hoping he will not find his way back in a short period of time? Isn't it logical to expect that the mentally ill who move in and out of the county lock-up will at some point become dangerous?
That's what happened in the case of Duc Minh Pham. Those who are familiar with him noticed that in the months before the shooting he had begun to "decompensate"— the clinical term for "become more dangerous." But there was no legal process by which Pham could be picked up, held against his will and forced to undergo treatment.
Furthermore, it's unfair and highly unrealistic to expect people within the criminal justice system to look into a crystal ball and predict that Pham would suddenly snap as he did.
The solution is difficult but not complicated. Lawmakers need to force a change that will provide for the mentally incompetent in a more proactive way that will make the community safer and be more cost effective for the taxpayer.
The first step is a change in state law to give judges the ability to send incompetent offenders into a mental health system that is set up to help them.
Other states have done it. On July 24 of this year, Dr. E. Fuller Torrey discussed this problem in a commentary in the Albuquerque Journal. He described the great success the state of New York has had with its Assisted Outpatient Treatment Law. Once this law went into effect, New York saw an 86 percent reduction in incarcerations and an 83 percent reduction in arrests for this segment of the population.
New Mexico needs to recognize that the very definition of "incompetent" is that someone is incapable of helping himself. Therefore, the responsibility of providing help falls on society. As Torrey pointed out, "People who are rendered incompetent by severe mental illness need treatment based on need, not dangerousness."
The time to close this gaping social service hole is long overdue. We in the Metropolitan Criminal Justice Coordinating Council are exploring ways to amend state law to close that gap. Public input and assistance is appreciated.
Judge Brennan is chairman of the Metropolitan Criminal Justice Coordinating Council.
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