Not Guilty by Reason of Insanity – Part Two

Not Guilty by Reason of Insanity A Victory Today but A Long-Term Loss Tomorrow Part II

While the Not Guilty by Reason of Insanity Defense is a necessary and vital tool that should be utilized when appropriate, sometimes the long-term effects aren’t always clear. In my work to successfully advocate for a partial-conditional release for a client at a State hospital I came upon a man who like my client was NGRI and committed to a hospital For him, as he was committed based on a NGRI for a Class A offense he could be in theory committed there for the rest of his/her life for something that he/she would have served less than two years on.  He/she had been committed for seven years at that point.  I am not sure which is better or worse but it does make someone think.  Now on to the Leveling System.

Ross v. Lashway Settlement Agreement

In order for Western State Hospital (WSH) to comply with the settlement agreement, among other things, WSH has implemented a new Forensic Leveling System to evaluate patients from intake after NGRI to release.  It is a six-step system that incorporates the old level system and old conditional release levels.  It utilizes the Community Outpatient Treatment Readiness Evaluation Instrument; Forensic Risk Assessment; and “Clinical Judgment” to determine when to grant lower levels of security and greater access to the community.  Now let’s look at the specifics of each step of WSH’s Leveling System:

Level 1: Participates in treatment needs assessment to guide treatment plan; participates in orientation and treatment program; demonstrates an understanding of rules and program expectations; completes program assignment as outlined in the treatment plan; demonstrates safe behavior with peers and staff; no assaults, property destruction, elopement attempts or bullying. In order to move to Level 2 COTREI (Community Outpatient Readiness Evaluation Instrument) must be 4 or less.

The Community Outpatient Readiness Evaluation Instrument rates a person in 15 areas on a range of 1-4, 1 being the best and 4 being the worst.  Those areas are: illness, behavior, substance abuse, treatment attendance, medication, self-awareness, understands signs of illness, lifestyle adjustments, concern about becoming ill, plan for reemergence of illness, relationship of illness to crime, acceptance of responsibility for crime, need to continue treatment, future plans, accepts community outpatient treatment restrictions.  Ultimately in any evaluation, there are subjective judgments involved in the evaluator based upon his or her experience.

Level 2: must maintain Level 1 program expectations. In addition: Greater than 50% attendance and participation in active treatment programming (Step A); completes Level 2 program assignment as outlined in treatment plan. Further, 70% attendance and participation in active treatment programming are required for Step B. COTREI must be 4 or less.

Level 3: must maintain all previous program expectations. In addition: 75% attendance and participation in active treatment programming; participate and complete Level 3 program assignments as outlined in the treatment plan; review of index crime with a primary therapist; If returned from Conditional Release, must participate in the review of reasons for return to inpatient hospitalization.  COTREI must be 3 or less.  Please note that WSH can move people down if they have issues in their process as determined by WSH.

Level 4: (Partial Condition Release Level). At this point, the patient is truly on the road to being released. Now to qualify for this level must maintain all previous program expectations. In addition: 90% attendance and participation in active treatment programming; participate and complete Level 4 program assignments as outlined in treatment plan; completed Actionable Relapse Prevention Plan (for mental health and chemical dependency, if appropriate); If returned from Conditional Release, must participate in the review of reasons for return to inpatient hospitalization. COTREI must be 2 or less.  Also, per policy of WSH, the patient must have a Forensic Risk Assessment that supports Partial Condition Release with unescorted access to hospital grounds.  Also, the patient must follow all court-ordered conditions. Patient in the view of WSH providers must have demonstrated success at each step and phase prior to consideration for progression.

Level 5: (Partial Condition Release Level). Patient must maintain all previous program expectations. In addition:  90% attendance and participation in active treatment programming.  Patient must participate and complete Level 5 program assignments as outlined in the treatment plan; there must be an actionable Discharge plan for reintegration into the community; identify and execute active treatment for community reintegration; education, work, recreation, and treatment; COTREI must be 1 or less. In addition, the patient must have a Forensic Risk Assessment that supports Partial Condition Release with unescorted access to hospital grounds; must follow all court-ordered conditions. Again, the patient must have demonstrated in WSH’s opinion success at each step and phase prior to consideration for progression.

Level 6: (Partial Condition Release Level): must maintain all previous program expectations. In addition: actively engaged in discharge planning; must abide by all conditions of the court; COTREI must be 1 on all domains.  Exceptions must be based on clinical assessment/documentation. Patient must have documented mitigation strategies; also requires a court order for Conditional Release.  If you make it to this point then WSH should release you via their own determination. However, WSH may not but then the patient still has legal recourse.

Under RCW 10.77.200, the patient can petition the court for release or conditional release from the institution in which he or she is committed. The petition shall be served upon the court, the prosecuting attorney, and the secretary. Upon receipt of such petition, the secretary shall develop a recommendation as provided in subsection (1) of this section and provide the secretary’s recommendation to all parties and the court.

The issue to be determined on such proceeding is whether the patient, as a result of a mental disease or defect, is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.  If the patient demonstrates by a preponderance of the evidence that he or she is not a substantial danger to other persons or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions they shall be set free.  Obviously, each case is different and individual facts will vary.

We hope this article has been helpful in giving an idea of what it takes in November 2018 to get someone released from a determination from a Washington State institution once they are committed to one after a Not Guilty By Reason of Insanity determination and subsequent determination of a need to commit the person.   This article is not meant to constitute legal advice and you should talk to a qualified criminal defense attorney about actual individual issues.