Editor’s note: This commentary is by Anne Donahue, who is the interim executive director of Vermont Psychiatric Survivors, an independent statewide mutual support and civil rights advocacy organization run by and for psychiatric survivors. A Republican, she represents Northfield and Berlin in the Vermont House of Representatives.
[F]or some time now, based on the charge of having a mental illness and being “a danger to self and others,” those of us with labels of psychiatric illness can be locked up for as long as the medical system says it is needed. The standard of proof is much lower than for someone who is found guilty of a crime.
When a crime is charged, the proof of committing the crime must be “beyond a reasonable doubt.” For the charge of having a mental illness, it’s a “preponderance of the evidence,” which means not as much proof is needed.
In addition, for a crime, there is a set amount of time for being locked up, and a set amount of time for being on probation or parole. For a mental illness, there is no limit to how long being locked in a hospital can be extended, and no limit to the number of times an outpatient commitment order for involuntary psychiatric supervision can be continued.
The Supreme Court has said this is OK because those with mental illness are being treated, not punished. Local community mental health centers supervise people under an outpatient commitment order, while the Department of Corrections supervises parolees who were convicted of crimes.
Now, Vermont’s local state’s attorneys want to change that, and give them a say in how long a person stays hospitalized if any kind of a crime was charged. They want the Department of Corrections to supervise the outpatient commitment if a person was charged with a crime but found not competent to go on trial.
An outpatient order can be longer than probation would have been, but it can also be shorter, if the mental health agency believes a person is no longer a danger. The prosecutors want the law to say that an outpatient treatment order can last as long as probation for the crime that was alleged could have lasted – even if the person is well.
They want crime victims to be able to testify about how they were harmed – even though there was never proof of the crime established – in order to argue for a longer commitment order.
They want the orders to be about “public safety,” not about treatment, so that a person can be locked up in a hospital again if the order is violated and prosecutor thinks they might be dangerous, even if there is no crime committed and even if there is no evidence of a continued mental illness.
What is wrong about this? Just that under the United States constitution, a person is not allowed to be locked up unless they are either actually convicted of a crime (or charged and a flight risk pending trial), or they are found to be both mentally ill and a danger, which is specifically defined as being “in need of treatment.”
In a memo written for the study committee that is reviewing outpatient treatment orders, the prosecutors used terms such as “people who engage in criminal conduct,” “these offenders’ criminal behavior,” and dangerousness “as evidenced by criminal behavior.”
But no criminal actions by these people has ever been proven.
People can have their liberty taken away under current law if charged with being “in need of treatment” – being mentally ill and a danger – but they are not considered convicted criminals if there has never been a finding of having committed a crime.
But our state’s prosecutors want to change that. They talk about people who are only charged with a crime as criminals. They want to have the same legal authority over them that they have for people who are convicted of crimes.
They say that it is not fair that people with a mental illness who are charged with a crime are allowed to be just in the custody of the Department of Mental Health based on being shown to need treatment – the very thing the Supreme Court has said the constitution requires!
State’s attorneys in Vermont – our county prosecutors – are elected positions. They act on behalf of us, and they are responsible to us. Their positions are up for election this fall. Those concerned about civil liberties should be asking candidates for the position of state’s attorney these questions:
• Do you believe a person is not a criminal until they are convicted of a crime?
• Do you think a person who was never convicted of a crime should be supervised by the Department of Corrections just like a person convicted of a crime, instead of the Department of Mental Health, simply because of a court finding that they are mentally ill and need treatment?
The way to fight back against this prejudice is by voting against those who are promoting it. When anyone’s rights are put at risk, all of our rights are put at risk.