The Deeper Dig: Chittenden case dismissals could spark legislative change

Aidan, tell me about this meeting you covered this week.

Aidan Quigley: The Joint Legislative Justice Oversight Committee met at the Statehouse to talk about the interactions between the criminal justice system and the state’s mental health systems.

Sen. Dick Sears: Why don’t we start with Sarah George, if we could…

So this is a group of lawmakers from both the Senate and the House, chaired by Senator Dick Sears.

Sears: For those of you who weren’t in the room this morning, we had an update from Eric Fitzpatrick and Katie McKinn from Legislative Council on the current state of our laws regarding insanity defense and what happens to people…

Quigley: At the baseline, this meeting was inspired by Chittenden County State’s Attorney Sarah George’s decision to dismiss two murder cases and one attempted murder case where the defendants had used the insanity defense. She had determined that the state would not be able to successfully defeat those defenses. Essentially, the defendants proved that they were insane at the time of these crimes.

And she said that before they went to trial: we’re not going to be able to prosecute these effectively, so we’re just gonna let the charges drop.

Quigley: Yep. So she dismissed the cases. And essentially, when that happens — the three individuals are in the care and custody of the Department of Mental Health. They’ve been there since these crimes, which happened in 2015 and ’16. Each of these three crimes is now a couple years old, and these people have been in the care and custody of the Department of Mental Health, and there’s not going to be a trial for these individuals after this essentially.

What was the reaction like when she made that decision?

Quigley: Basically, after she announced, the next day, or two days later, the governor sent a letter to Attorney General T.J. Donovan essentially saying that he didn’t understand how this can happen. As a governor, as a citizen of Vermont, when there’s a public safety risk, that’s the number one priority of government, and he didn’t understand how this could happen.

Especially considering that the Department of Mental Health, you know, their role in this is as a treatment provider. So when the individuals that they treat are done with their treatment, they move down to a lower level of treatment and eventually get released back in the community. That was his concern.

He asked the Attorney General to review the cases. That kind of started this whole political firestorm between the governor’s office and Sarah George, and a lot of different players weighed in. It was a lot of discussion about this issue.

You talked to her throughout this process. Did she think, or did she know, that taking that step that she took was going to set off this whole political firestorm?

Quigley: I think she knew that it would be a lot of feedback on the decision. Those three extremely high profile murder cases — one of which was a woman who allegedly shot her shooting instructor in Westford, one of them was a man who allegedly stabbed someone on Church Street in downtown Burlington, and the third one was a man who allegedly killed his wife with a meat cleaver — these are three big cases to have in Burlington, one in Westford. I’m sure she knew that dismissing all three at the same time would really draw attention.

Chittenden County State’s Attorney Sarah George: So thank you, really, for having me. So, context, this conversation is something that we’ve been having a lot in the prosecutorial world, and I feel like it kind of came to a head recently, as we all know, and I’m glad to have an opportunity to address some of it.

How does that lead us to all these officials getting in a room together with a bunch of legislators and talking about these intersections?

Quigley: A lot of conversations have happened after this, about the Department Mental Health and their role as a treatment provider, the criminal justice system and their role as holding people accountable for their behaviors in society. And when these two interact, which is a lot, as many people today said, trying to figure out the correct way to navigate these two systems is kind of how we got to the conversation today.

We heard from the Attorney General T.J. Donovan, we heard from David Cahill, who’s the state’s attorney in Windsor County, Matt Valerio, the Defender General. But we also heard from Sarah Squirrell, who’s the Commissioner of the Department of Mental Health. Basically, all the different players in this little map here, of the two systems and how they interact.

Sarah George was first up in this group of people to testify today. What did she explain, or what did she suggest that might help to resolve some of this tension?

Quigley: One big, big piece of this, which Sarah George has been talking about since she dismissed these cases, is the aspect where essentially when these individuals are released from their mental health care, the victims of these crimes and the families of the victims will not be notified — because of the federal health care law, HIPAA, is the argument made by the Department of Mental Health. They say we cannot violate federal law. We receive federal funding. We cannot release any information. We can’t even confirm that these individuals are under our care and custody.

Because that alone would be a privacy issue.

Quigley: That alone would be a privacy issue, exactly.

George: As we’ve learned recently, once an individual is put into the custody of the Department of Mental Health, as our laws allow, everybody else is shut off from that. They become a 100% patient of the Department of Mental Health, and therefore victims of those crimes are not given any information about the whereabouts of that person, and when they might be released, if they are released.

Quigley: As the Legislature moves forward on this, that’s going to be a huge aspect of trying to figure out: how can we let families of victims and victims themselves know what’s going on with these perpetrators of crimes against them with their family members, while not violating the federal health care privacy law? And there doesn’t seem to be good answer right now.

What are the other areas of friction that we’ve heard about?

Quigley: She made the argument that the criminal justice system is kind of the fallback system when the Department of Mental Health and other systems are unable or don’t have enough resources to fulfill their duties of caring for people with mental health issues in these cases.

George: I think that we have gotten very accustomed as a system to rely on the criminal justice system to take over for all of these other partner agencies, when they don’t have the resources they need, when one: I don’t believe it’s our place, we’re not very good at it. And, it just creates over-incarceration, and/or people would get the treatment they need very quickly but don’t actually address the major underlying issues. And then are almost always reoffending in the community.

Quigley: So these people end up in jails. And this is something that T.J. Donovan, the Attorney General, also talked about today. The jails end up being a large space provider I guess of these services to people with mental health issues. And that’s, you know, that’s not… Sarah George kind of made the argument that instead of incarcerating these people we need to be preemptive and you know, add more capacity to the Department of Mental Health.

So much of this conversation seems to have started with these insanity defense cases that she dismissed. What did legislators want to know about that process?

Quigley: Legislators had a lot of questions about you know, how does the insanity defense work? What is the definition of insanity defense and being competent to stand trial? So the insanity defense and various speakers during the meeting described this, is about the specific moment of the crime. Did the individual understand what they were doing, essentially, when they committed the crime? Competency — is this person able to stand trial right now? Are they do they understand the charges against them? So that’s a big distinction.

Donovan: Competency for me, was always kind of the bigger issue because that’s really the gatekeeping approach to the criminal justice system. If you’re not competent, there’s no proceeding, you’re not going to go. But it’s a dynamic condition. You can be not competent one day, and you can be competent next week, and the proceedings can go forward. And I think that needs to be important. So it’s a dynamic evaluation that can change. Insanity is a question of fact.

Quigley: Here, these three cases all were about the insanity defense. And another discussion is: Do the state’s attorneys have enough resources to hire experts to counter the insanity defense? And George said no, in lower level cases, we don’t have the same resources that the defender general’s office has.

It’s too expensive.

Quigley: Exactly. Yeah.

George: I feel very strongly that all of the state’s attorneys would testify that they do not have the resources they need to hire experts in insanity cases, or competency, and they are incredibly expensive. And we are often dismissing cases that are lower level cases because we cannot afford to hire an expert on them when the defense has hired an expert of their own.

Quigley: But she was clear that this was not the case in these cases, in these cases, each of the three murder cases, she hired an independent export, essentially, all the experts in the three cases came to same conclusion that they, the individuals were insane at the time of the crimes.

Gotcha.

Quigley: David Cahill came with kind of a list of ideas on how to bridge this gap. And one of those ideas was having individuals kind of have dual status, you know, as both a public safety risk and a patient.

Windsor County State’s Attorney David Cahill: We should call them a patient and also a potential public safety risk. All hearings regarding public safety should be public and victim notification. And by victim I mean, not just the survivor of an attempted homicide, but the statutory victims who are the family members of someone who is the victim of a completed homicide, they should be entitled to notice before the person leaves a secure facility for any reason.

There are a myriad of reasons why someone can leave a secure facility. It could be because they’re officially getting stepped down to outpatient treatment, it could be because they’re going to the dentist, you all have recognized that there’s that need for notification on the Department of Corrections side, there’s that equal need for notification on the mental health side with homicide defendants. It’s wholly lacking. We should put it into law.

Quigley: Because the Department of Mental Health has responsibilities to its patients. And that responsibility is: provide care. The Department of Corrections has responsibilities to inmates, you know, incarcerated people that is rehabilitation at the end of the day, in the ideal world, but it’s also to you know, keep them incarcerated, at least for the length of the sentence.

For public safety reasons.

Quigley: Public safety reasons. Yeah, exactly.

Dave Cahill’s idea is to have, starting with these homicide cases — when you become, if you successfully use the insanity defense or case does stop because you are using the insanity defense, you’re both in the custody of the Department of Corrections and the Department of Mental Health. So they can keep an eye on your treatment. And if you’re released, they’re able to let people know. But how does that line up with HIPAA? That’s another thing that was not quite fully answered at this hearing.

And that’s something where like, right now there’s kind of this handoff, right? Somebody comes into the system, but they’re fully handed off from one system to another — DOC or Department of Mental Health. And he’s proposing that there be a little bit more overlap between somebody’s being in those departments’ jurisdictions.

Quigley: Exactly. So the Department of Corrections can still monitor these individuals and know what’s going on.

Got it. What did we hear from the Attorney General?

Quigley: So he’s been on both sides of this. And he said, I’m still confused, basically, about how this works. You know, like, it’s a very complicated, confusing system.

Donovan: I think I’ve got a unique perspective on this issue having been a state’s attorney and now Attorney General where we provide legal counsel to the Department of Mental Health, and I’ve come to a conclusion, based on those unique experiences. I’m still confused on this system.

Quigley: And he kind of made the point that a lot of inmates do have mental health issues. And it’s not just these kind of high profile insanity defense cases.

Donovan: I can say without reservation that mental illness permeates our criminal justice system. It permeates our criminal justice system. In fact, I would argue our jails are probably our largest mental health providers and facilities in the state. And these are not the cases that are going to rise to the issue of the Department of Mental Health. These are not going to be the cases that we debate competency or sanity, but it’s mental illness nonetheless.

Quigley: So you know, right now, there’s a clear gap between the Department of Mental Health and the state’s attorney and there’s been some public back and forth in the pages of VTDigger and other news outlets where these two sides have kind of been making their cases and pushing back against ideas the other is putting out against each other. And part of his testimony was that we need to bridge these gaps here.

Donovan: I think the systems are fundamentally different. The criminal justice system is a public safety system, Department of Mental Health is a is a health care system. They’re a health care provider, we have said that they are meant our mental health provider in this state. Are their public safety ramifications? Yes. But that’s not DMH’s role. DMH’s role is to determine whether or not somebody is in need of treatment. And then what is the level of setting based on that need in the least restrictive means possible?

Sears: You go from being a patient to an inmate, and that’s a very different expectation in terms of treatment.

Donovan: Yeah.

There’s so much conversation coming from the prosecutor’s side about the Department of Mental Health. What did the Department of Mental Health bring to the table?

Quigley: They essentially brought it back to what they’ve been saying since this has happened: You know, we are a treatment provider. We are not an arm of the criminal justice system.

Squirrell: The Department of Mental Health, it’s important to note, we are a health care provider and payer of health care services. And what is in our purview and and what we are responsible for, is to provide mental health services and treatment to those in our care, and to provide that care in the least restrictive settings. And I think these current activities and the conversation that we’re having, you know, really highlights where the intersection of criminal justice and mental health is very, very complex. And when we think about public safety, of course, it’s something that fundamentally we value as a department, but the tools that we have, within our capacity as a health care provider are very limited when it comes to ensuring public safety.

Quigley: Sarah Squirrell said it was a good conversation to be having and they’re happy to, you know, help lead that conversation and talk about potential changes, but the heart of their work is to treat people and you know, help people get better. And that’s kind of their main focus. That’s the lens that they look through.

They also brought up the HIPAA concerns, which had not been discussed yet. Essentially, we cannot keep receiving the federal funding and break the federal privacy laws, we have to follow these laws.

Squirrell: We have to adhere to laws that govern protected health information. So as such, because we have patients in our care as a health care provider, we’re prohibited from disclosing information about patients. So we can’t even confirm or deny that someone is in our custody. And that’s HIPAA-protected information. And it’s my understanding that Vermont law cannot override federal law. So that’s something that we need to think thoughtfully about as we think about this challenge of notification and recognizing that we are operating under federal protected health information.

Quigley: They bought a lot of perspective to the table: Basically, this is a reality of our situation. And we are constrained in some ways. But also, our mission is different from the mission of the criminal justice system. That we’re happy to work together, but we treat people.

Sqiurrell: Psychiatric care for those who are in various stages of the criminal justice system is commonly called forensic care. One might say that Vermont is a little bit of an outlier nationally in regards to not having a forensic system of care. Other states have some examples of that, which do articulate more partnership between their respective Department of Mental Health, the criminal justice system, and corrections.

Does it seem like this is a problem that can be legislated away? Does it seem like, based on what we heard today, that drafting a bill next January is going to be a surefire way to solve this?

Quigley: That’s a very good question. And Sarah Squirrell kind of touched on this on her testimony when she said, you know, she was talking about how it’s an important discussion to have, but we need to do a lot of research on this. We need to take a lot of time to figure this out.

Squirrell: Could you think about, you know, dual custody that involves corrections? Possibly. These are all ideas, I think, that we can be thinking about as a system, but of course, would require much more robust research and discussion.

Quigley: And all sides agree it’s complicated. You know, it’s there’s no easy answers here. So will we see something this next session? I’m sure there’ll be a lot of energy for something this session and discussion about what they should be doing. But as we saw this past session, things generally take a while to come to fruition. And Senator Dick Sears mentioned that he’s been in the legislature for a long time. And this is a conversation that kind of comes and goes when cases like this happen.

Sears: I’m reminded that we’ve been trying to deal with this thing for, I think ever since I’ve been here. In my first term, there was a mass shooting in Bennington, where, luckily, only one person died. And I say only one. But a number of people were wounded in the shooting. The woman ended up in the system, and has been in the system, I don’t know if she is out now. But, you know, for a number of years. And so in my first term, I remember trying to tackle this problem — the definition of insanity versus incompetence. It seems like we have a basic disconnect between the mental health system and the justice system in terms of what those two words mean.

Quigley: I think the fact that there were three cases and it has become such a political discussion — with the governor’s letter asking for the review by the attorney general, who agreed to review it and all these kind of factors involved — I do think we’ll see some discussion and a bill and whatnot. But getting to the finish line is always difficult, especially on complex issues like this.

And I’m assuming the governor’s opinion is going to matter too, once we get to this stage of their actually being a bill on the table.

Quigley: Yep. So he was kind of the one big player, in the public discussion about this that was not in the room. So yeah, you know, it’s going to be fascinating to see kind of how these different players keep moving, especially as there’s going to be a campaign for governor coming up. And the Attorney General is rumored to be considering a run. Maybe more than rumored. I’m not sure how to put it, but yeah, so it’s gonna be exciting to see how the different political angles of this play out as we move forward.

Thanks Aidan.

Quigley: Thank you.