According to the National Conference of State Legislature's (NCSL) 2000 State Health Priorities Survey, nine states have identified outpatient civil commitment among the legislative priorities next year. The states that answered yes to outpatient civil commitment on the 2000 Priorities Survey are: Indiana; Nebraska; New Hampshire; New Jersey; North Carolina; North Dakota; Texas; Maryland; and Kentucky. NCSL has also responded to information requests on the issue from legislative staff in Pennsylvania and Nevada.

California's Lanterman-Petris-Short Act (LPS) was the model for almost all of our nation's restrictive assisted treatment laws. LPS was enacted in 1967 and based in part on the recommendations of such anti-treatment figures as Thomas Szasz, who denies that mental illness even exists. The ways in which the LPS law effectively denies care to those who need it most is all too familiar: a standard that only allows for the assisted treatment of those who are dangerous rather than simply to those who are too sick to understand their need for care, no court-ordered outpatient treatment and ponderous, redundant procedures. Many states have since abandoned LPS prohibitions on treatment. This year we hope to see LPS reformed as well.

Californian Assemblywoman Helen Thomson and Senator Don Perata have introduced legislation to reform LPS. The Thomson/Perata proposal introduces the "need for treatment" criteria into LPS and allows for assisted outpatient treatment as well as streamlining California's absurdly cumbersome procedural laws pertaining to assisted treatment.

Among the bills many advances are that it would:

• allow consideration of the patient's medical history and condition beyond the immediate moment in order to consider the risk of further deterioration without treatment;
• combine certain court hearings to allow the need for involuntary commitment and treatment to be determined at the same hearing; and
• provide an outpatient treatment option to permit court-ordered treatment in a less restrictive setting.

In passing the bill, California would transform its law from one of the country's most prohibitive of treatment to one that most encourages the care of those overwhelmed by mental illness.

Our Center is supporting the efforts of the California Treatment Advocacy Center (CTAC) to secure the passage of the LPS reform bill. Ably led by Co-Coordinators Carla Jacobs and Randall Hagar, CTAC members are hard at work to reform LPS—writing letters to, speaking to and meeting with community organizations, legislators and newspaper editorial boards.

The efforts of CTAC's faithful have so far paid off. The Los Angeles Board of Supervisors unanimously resolved to support Assemblywoman Thomson and Senator Parata's measure. NAMI's national leadership is solidly behind the measure. NAMI Executive Director Laurie Flynn issued a press release that pronounced, "The reform initiative is consistent with NAMI policy, and I consider it a model of positive, exemplary leadership." Perhaps most importantly, editorials endorsing LPS reform have been published by most of California's leading newspapers, including the Los Angeles Times, San Diego Union-Tribune, Ventura Star, Sacramento Bee, Long Beach Press Telegram, and San Francisco Chronicle.

The future of the reform bill is by no means certain, but their appreciation of the vital need to change California's existing laws will no doubt spur CTAC's members to even greater efforts. As CTAC Co-Coordinator Carla Jacobs points out about LPS, "under the current law—for people too sick to realize their own need—there is no treatment available. Instead they eat out of dumpsters, shunning outreach attempts, hallucinating and delusional, too frequently ending in our jails and prisons."

A recent case from a Vermont superior court illustrates an unusual example of how newly-enacted assisted treatment laws can get tangled up in legal challenges. In J.L. v. Miller, a judge denied the State of Vermont's motion to vacate an existing consent decree; a motion necessary for the full implementation of the State's new involuntary medication law. This decision applies only to Vermont and could still be overturned.

Since 1985, the J.L. Consent Decree has governed procedures for the involuntary medication of patients committed to the Vermont State Hospital. Under its provisions, the standard for making an involuntary medication decision is the "substituted judgment" standard. Under this standard, the administrative hearing officer must determine that the person, if competent, would consent to treatment.

In 1998 the Vermont legislature passed Act 114 with the intent to "render the use of the J.L. v. Miller Consent Decree no longer applicable." The law extended the application of the involuntary medication procedures to those who live in their communities under Orders of Nonhospitalization (assisted outpatient treatment) and inmates in correctional facilities. The new law also provides for a different set of procedures and a different standard for involuntary medication hearings. Family Court hearings replace administrative hearings. The "best medical interest" standard is to be applied rather than the "substituted judgment" standard.

In July 1998 the State of Vermont filed petitions for involuntary medication under the provisions of Act 114. The presiding Family Court judge dismissed the petitions for lack of jurisdiction; the J.L. Consent Decree needed to be vacated in order for the Family Court to hear such cases. Accordingly, the State filed a motion to set aside the J.L. Consent Decree. The Vermont Protection & Advocacy, Inc., opposed the motion in an effort to block implementation of the new law.

The Superior Court judge applied the established legal criteria to determine whether to grant the State's motion to set aside the J.L. Consent Decree. She found that the State did not meet its burden of proving that the Consent Decree should be overturned and therefore denied the motion. With this decision, the J.L. Consent Decree and the "substituted judgment" standard continue to govern the State's procedures for involuntary medication of individuals in the State's psychiatric hospital. However, the court did not make any findings concerning the constitutionality of Act 114, specifically stating that, "This court has not addressed whether the substituted judgment standard is constitutionally protected." Thus, the decision does not impact involuntary medication procedures under Act 114 for individuals in the community or inmates in correctional facilities who are not covered by the J.L. Consent Decree. The court left the door open for the State to further pursue a motion to have the J.L. Consent Decree overturned.

Approximately 1,000 homicides per year in the United States are committed by individuals with severe mental illnesses. Where does this number come from? The estimate came independently from two studies, both of which arrived at approximately the same conclusion.

This was a study of 2,655 homicides in 1988 drawn from a representative sample of 33 of the largest counties in the United States. The information was obtained from the files of prosecutors who examined the cases. They reported that 4.3 percent of the assailants had a "history of mental illness."

In 1988 there were reported to be 20,680 cases of "murder and non-negligent manslaughter" in the United States (Sourcebook of Criminal Justice Statistics online). Therefore, there were 889 homicides (20,680 x 0.43) caused by mentally ill individuals in the United States in 1988.

Since 1988 the murder rate has decreased in the United States (16,914 in 1998). Most of the decrease is thought to be caused by: (1) increased incarceration rates of career criminals; (2) fewer drug-related homicides because of increased organization of the cocaine distribution; and (3) demographic factors, especially an aging population. None of these would be likely to affect the homicides committed by individuals with mental illnesses.

On the other hand, since 1988, public psychiatric services for individuals with mental illnesses have continued to deteriorate. There are now many more such individuals who have been released from state psychiatric hospitals and who are not being treated. In addition to this, the overall population of the United States has increased 12 percent (from 245 million in 1988 to 274 million in 1999). Given the increased number of untreated severely mentally ill individuals and the population in 1999 compared to that in 1988, it does not seem unreasonable to assume that the 889 homicides related to mental illness in 1988 grew to approximately 1,000 homicides in 1999.

This reported a study of all homicides committed by severely mentally ill individuals reported by a single newspaper, The Washington Post, for the year 1992. There were 13 such homicides.

It was assumed that this newspaper was covering stories for the metropolitan Washington, D.C., area of approximately 3 million people. The total population of the United States in 1992 was 255 million, or 85 times that of the Washington area. Since homicides by severely mentally ill individuals were being anecdotally reported throughout the United States, in rural areas as well as in urban areas, it was assumed that the Washington metropolitan area was representative of the entire United States.

The total number of homicides committed by severely mentally ill individuals in the United States in 1992 would therefore have been 1,105 (13 x 85). This, of course, includes only those cases of which the newspaper became aware. In addition, between 1992 and 1999, the population of the United Sates increased 7 percent (from 255 to 274 million).

The 1992 report, "Criminalizing the Seriously Mentally Ill", by the National Alliance for the Mentally Ill and Public Citizen's Health Research Group, documented the criminalization process that had been apparent for years to those who work in the criminal justice system.

Mentally ill individuals have been caught up in the criminal justice system due to the closure of inpatient psychiatric hospitals and restrictive standards for involuntary treatment for mental illness. As total hospital beds for treatment have shrunk, jail and prison populations have exploded.

According to the United States Department of Justice, as of midyear 1998 an estimated 283,800 prison and jail inmates were mentally ill. This represented 16 percent of state inmates and 7 percent of federal inmates. Between 1.2 and 1.5 million acutely mentally ill individuals are admitted to our nation's jails each year. In comparison, there are less than 60,000 individuals in state psychiatric hospitals.

I am concerned about the anguish that I often see when a mentally ill individual is charged with a crime. As hard as it is for a mentally ill defendant to cope with a criminal charge, it is often harder for the family of the mentally ill defendant to experience the criminal prosecution. Family members who encounter behaviors and decisions that seem irrational and hostile commonly suffer frustration, disappointment, anger, and grief.

I hope to give some explanation about the criminal trial process that will reduce the anguish that derives from misunderstandings about the process. This article focuses on the defense function. Future articles may discuss the Court, the prosecutor, the jail/prison and the police.

One of the first decisions that will confront a defendant, and therefore the family, is the selection of a defense attorney. A decision must be made. Will an attorney be hired? If so, which attorney, and who will contact and pay for the attorney?

An individual charged with a crime is entitled to a free lawyer if he or she cannot afford to hire a lawyer. Therefore, every court has a system for providing free legal counsel to those who are indigent. There may be a public defender office to provide counsel, or the court may appoint a lawyer to provide services with the cost paid by the government.

If the defendant is able to hire an attorney, the appointment of free counsel will not be an option. If the defendant is unable to hire an attorney, the defendant's family may want to hire an attorney, and a decision must be made whether to do so.

The family must understand that the attorney's ethical obligation flows to the defendant even if the family selects and pays for the attorney. A defendant cannot be forced to accept representation by an attorney hired by someone else. If the defendant does accept representation by an attorney hired by his family, the defendant enjoys the same relationship with the attorney as if he had hired the attorney himself. These principles frustrate many families who desire to have an active role in making decisions because they selected and paid the attorney.

It is essential that a criminal defense attorney be obtained, because special skill and knowledge is required to provide effective services in a criminal case. Do not routinely reject representation by the court appointed attorney. In many jurisdictions the public defender may provide high-quality services. Large caseloads may limit the amount of time that a public defender can spend with the defendant or the family, but the caseloads also provide a tremendous amount of experience in a short time.

Public defenders are specialists. Do not just rely on the family attorney that wrote your will or helped you settle on your house. Effective and experienced criminal defense attorneys can be very expensive. At the same time, there are defense attorneys that are expensive who are neither experienced nor effective. So how do you know if the public defender will do a quality job? How do you find a good attorney to hire?

If you have a family attorney, seek his or her opinion about appointed counsel and about possible referrals. If you know someone who works in the criminal court system, (e.g. policeman, probation officer, deputy sheriff) seek his or her opinion.

Though appointed counsel does not have to answer your questions, nevertheless ask about educational and professional experience. How long has the attorney been a defense attorney? Has he or she handled other similar cases? Does he or she understand the mental illness that is involved? If you encounter resistance or hostility you may want to consider other options if you have them.

When selecting an attorney to hire, look for prior experience in criminal court. Former district attorneys and public defenders or their assistants may be good possibilities. Membership in the National Association of Criminal Defense Lawyers reflects a particular interest and commitment to criminal defense work. The national office may be reached at 202-872-8600. Be sure the selected attorney has an understanding and sympathetic view of the mental illness that is involved.

Referrals from other families active with your local NAMI organization may be helpful. Ask about costs up front, and insist that the fee agreement be reduced to writing. It is common for criminal defense attorneys to require payment of most, if not the entire fee, in advance.

As noted above, the attorney's ethical obligations are owed to the defendant regardless of who is paying the fee. This means that the communications between the defendant and the attorney are privileged, and the attorney must keep them confidential. If the attorney allowed a family member to sit in during an interview with the defendant, even with the defendant's consent, the substance of the interview would no longer be privileged and the family member could be compelled to disclose what was said.

Attorneys develop standard operating procedures to avoid violations of their ethical obligations. These procedures often exclude family members from client conferences about decisions and strategies. This is a common source of frustration for family members, particularly if the family retained the attorney.

Even though communications from the defense attorney may be guarded and limited, there is no legal barrier to communications from the family to the attorney. If the attorney is receptive to contacts, by all means confer with the attorney. If the attorney is hard to contact, send information in writing that you want the attorney to have. The attorney's caseload may complicate the scheduling of conferences with the family. This is another reason to provide information in writing.

Sometimes the defendant sees the family as the opposition. The family may want a therapeutic result in the criminal case, and the defendant insists that he is not ill and opposes all treatment. In such a case, the defense attorney will not be an ally of the family. The family should nevertheless provide information to the defense attorney, including treatment histories and descriptions of symptomatic behavior of the defendant. Families will need to find other ways to be heard in the case. This may include communication with the prosecutor or the judge. Such communications will be addressed in a future article.

Unfortunately, instruction about mental illness is neither required in law school, nor a common topic for continuing legal education. A particular attorney's understanding of a particular mental illness will depend upon the attorney's prior experience in other cases, or other personal experiences. Attorneys can be as uninformed about mental illnesses as the general public.

If you are selecting an attorney, discuss with the attorney his or her knowledge about the particular mental illness that is involved. It is obviously best to find an attorney that understands the mental illness. If this is not possible, at least avoid an attorney who has a misunderstanding about mental illness, and is not receptive to new information.

You can also ask an appointed attorney about his or her understanding of the mental illness, though you cannot be assured of a response. If the attorney is not well informed, offer to provide information and do so in writing. Be diplomatic; no attorney likes to feel challenged and criticized, and you may be totally discounted and ignored by an alienated attorney.

Disagreements about major decisions, such as whether to plead insanity as a defense, whether to have a jury trial, and whether the defendant will testify are frequently a source of family heartache. A mentally ill, though competent, defendant may opt to assert a defense that is doomed to fail. Or, he might forego a legitimate insanity defense.

It is the defense attorney's duty to counsel the defendant to make these decisions. However, it is the client, and not the attorney, who makes the decision. A defendant who was floridly psychotic at the time of a crime, but who will not accept that he is mentally ill, and who will therefore not assert an insanity defense, will not have the insanity defense in his case. The attorney cannot make this decision for the defendant.

It is wrong, therefore, to automatically conclude that a defendant is poorly counseled when he or she makes decisions that do not seem to be wise. This can be very frustrating to the attorney as well as to the family. The attorney may feel that he is prevented by confidentiality rules from sharing this problem with the family.

Let the defense attorney know if you think you can influence the defendant in his or her decision-making. Perhaps you can be enlisted to help the defendant make a particular decision. Do not attempt to influence the defendant without the knowledge of the defense attorney. This can lead to suspicion that you are fueling the unreasonableness of the defendant. If, on the other hand, you work cooperatively with the defense attorney, there can be a unified approach and suspicion can be avoided.

Unlike adoptions and real estate settlements, criminal prosecutions are typically unhappy occasions for all involved. This is particularly so if the charges are serious. The best defense attorney, the positive response of the defendant, and cooperative communications cannot remove the anguish that is inherent in the process of determining guilt and imposing punishment. Realistic family expectations about the criminal trial process will hopefully avoid some disappointment and frustration that would add to this emotional burden.

The recently released Surgeon General's Report on Mental Health is the equivalent of describing the maiden voyage of the Titanic without mentioning the iceberg. While the report criticizes private insurance companies for failing to provide "parity" in their coverage of mental illnesses, it is totally silent on the failure to provide parity in Medicaid, the federal government's insurance program.

For the most severely mentally ill, private insurance is essentially meaningless. Because of their illnesses, most are indigent, and private insurance is a luxury they cannot afford and are not in a position to obtain through employment.

Many of these individuals do have insurance through Medicaid, a federal insurance program that covers their care, except for a single exception—inpatient care in psychiatric hospitals. The federal government's Institution for Mental Diseases (IMD) exclusion prohibits Medicaid from reimbursing for most individuals who need care in a psychiatric hospital. If you have a disease in your heart, liver or any other organ and need treatment in a hospital, Medicaid contributes. But if you have a disease in your brain and need care in a psychiatric hospital, Medicaid does not.

As a result of this federally-sanctioned discrimination, state psychiatric hospitals are locking the front door and opening the back, making it increasingly difficult for the most severely ill to get inpatient treatment. They are discharging patients sicker and quicker in a headlong dash to make them Medicaid eligible by ending their inpatient residency.

There were about 470,000 individuals receiving inpatient psychiatric care in state hospitals when the Medicaid program started in 1965, compared with fewer than 60,000 today. Hospital closures have actually accelerated in recent years. Forty state hospitals shut their doors between 1990 and 1997—nearly three times as many as during the entire period from 1970 to 1990, and many more closings are planned.

The Los Angeles County Jail and New York's Riker's Island are currently the two largest "treatment facilities" for the mentally ill in the country. Another 150,000 to 200,000 mentally ill are homeless, and 28 percent get at least some of their meals from garbage cans. More than 10 percent will die from suicide. Others will commit acts of violence against family, friends and total strangers.

Not only does federal discrimination hurt the mentally ill, it affects the standard of living for everyone else, too. Many parks and public libraries, once enjoyed by all, are now rendered nearly unusable to the general community by the visions of lost, psychotic souls who need inpatient care but are locked out by the discrimination embedded in Medicaid law. Seemingly random acts of violence committed by individuals with a history of mental illness are frequently reported on the evening news. No amount of preaching by the Surgeon General against "stigma" will overcome the acts of a Russell Weston, a Ted Kaczynski or an Andrew Goldstein, all persons with untreated schizophrenia.

The federal government must accept its share of criticism for a policy that discriminates against individuals solely on a diagnosis of mental illness. We must steer clear of the iceberg that sank our state psychiatric hospital system and eliminate the Medicaid IMD exclusion.

MR. MOYNIHAN: Mr. President, this past Friday (July 9, 1999), The Washington Post carried an excellent op-ed piece, "Deinstitutionalization Hasn't Worked," by E. Fuller Torrey and Mary T. Zdanowicz. The authors are the president and executive director, respectively, of the Treatment Advocacy Center. They write about the continued stigma attached to mental illness. They write about barriers to treatment. Most important, they write about the aftermaths of deinstitutionalization and the seemingly horrific effects this policy has had.

In this morning's New York Times (July 12, 1999), Fox Butterfield writes about a Department of Justice report released yesterday which states that some 283,800 inmates in the nation's jails and prisons suffer from mental illness. (This is a conservative estimate.) As Butterfield puts it,". . . jails and prisons have become the nation's new mental hospitals."

Over the past 45 years, we have emptied state mental hospitals, but we have not provided commensurate outpatient treatment. Increasingly, individuals with mental illnesses are left to fend for themselves on the streets, where they victimize others or, more frequently, are victimized themselves. Eventually, many wind up in prison, where the likelihood of treatment is nearly as remote.

This is a cautionary tale, instructive of what is possible and also what we ought to be aware of. I was in the Harriman administration in New York in the 1950s. Early in 1955, Harriman met with his new Commissioner of Mental Hygiene, Paul Hoch, who described the development of a tranquilizer derived from rauwolfia by Dr. Nathan S. Kline at what was then known as Rockland State Hospital (it is now the Rockland Psychiatric Center) in Orangeburg. The medication had been clinically tested and appeared to be an effective treatment of many patients. Dr. Hoch recommended that it be used system wide; Harriman found the money.

That same year Congress created a Joint Commission on Mental Health and Illness with a view to formulating ``comprehensive and realistic recommendations'' in this area which was then a matter of considerable public concern. Year after year the population of mental institutions grew; year after year new facilities had to be built. Ballot measures to approve the issuance of general obligation bonds for building the facilities appeared just about every election. Or so it seemed.

The discovery of tranquilizers was adventitious. Physicians were seeking cures for disorders they were just beginning to understand. Even a limited success made it possible to believe that the incidence of this particular range of disorders, which had seemingly required persons to be confined against their will or even awareness, could be greatly reduced. The Congressional Commission submitted its report in 1961; it was seen to propose a nationwide program of deinstitutionalization.

Late in 1961 President Kennedy appointed an interagency committee to prepare legislative recommendations based on the report. I represented Secretary of Labor Arthur J. Goldberg on this committee and drafted its final submission. This included the recommendation of the National Institute of Mental Health that 2,000 "community mental health centers" (one for every 100,000 people) be built by 1980. A buoyant Presidential Message to Congress followed early in 1963. "If we apply our medical knowledge and social insights fully," President Kennedy stated, "all but a small portion of the mentally ill can eventually achieve a wholesome and a constructive social adjustment." A "concerted national attack on mental disorders [was] now possible and practical." The President signed the Community Mental Health Centers Construction Act on October 31, 1963— his last public bill signing ceremony. He gave me a pen.

The mental hospitals emptied out. The number of patients in state and county mental hospitals peaked in 1955 at 558,922 and has declined every year since then, to 61,722 in 1996. But we never came near to building the 2,000 community mental health centers. Only some 482 received Federal construction funds from 1963 to 1980. The next year, 1981, the program was folded into the Alcohol, Drug Abuse, and Mental Health block grant program, where it disappeared from view.

Even when centers were built, the results were hardly as hoped for. David Musto has noted that the planners had bet on improving national mental health "by improving the quality of general community life through expert knowledge [my emphasis], not merely by more effective treatment of the already ill." The problem was: there was no such knowledge. Nor is there. But the belief there was such knowledge took hold within sectors of the profession, which saw institutions as an unacceptable mode of social control. These activists subscribed to a redefining mode of their own, which they considered altruistic: mental patients were said to have been "labeled," and were not to be drugged. So as the Federal government turned to other matters, the mental institutions continued to release patients, essentially to fend for themselves. There was no connection made: we're quite capable of that in the public sphere. Professor Frederick F. Siegel of Cooper Union observed, ``In the great wave of moral deregulation that began in the mid-1960s, the poor and the insane were freed from the fetters of middle-class mores.'' Soon, the homeless appeared. Only to be defined as victims of an insufficient supply of affordable housing. No argument, no amount of evidence has yet affected that fixed ideological view.

I commend these two articles to my colleagues and ask that they be printed in the Record.