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Kathy Flaherty

We have spent the last several years reckoning with the racial disparities inherent in our criminal legal system. In recognition that most people convicted of a crime eventually return to our communities, we have rightly focused on the importance of re-entry and reducing some of the collateral consequences of a criminal conviction so that people who have served their time are able to rebuild their lives.  However, one group of people  who have interacted with the criminal legal system have been left out of the re-entry conversation – until now.

People who have been acquitted by reason of “mental disease or defect” (commonly referred to as “not guilty by reason of insanity”) by virtue of a plea deal or after trial are committed by the Superior Court to the jurisdiction of the Psychiatric Security Review Board for a term not to exceed the maximum number of years for which they could have been sentenced to Corrections had they been found guilty of the offense.  The Psychiatric Security Review Board (PSRB) was established in 1985 after the John Hinckley verdict. It is a group of six individuals, appointed by the Governor, with a mission of “protecting the safety of Connecticut citizens by ordering treatment, confinement or conditional release of persons acquitted of a crime by reason of mental disease or defect.”

Acquittees usually start their term of confinement at the maximum security division of Whiting Forensic Hospital. Eventually, they may move to the medium security service at Dutcher building.  Over a period of many years, they get increased levels of privilege and the freedom to move about the Middletown campus shared by Connecticut Valley Hospital and Whiting Forensic Hospital, are able to participate in community outings supervised by staff, and participate in temporary leaves for outpatient treatment services, and conditional release to live in the community.  Any of these levels of increasing freedom may be reduced at any time if either the clinical team, or the PSRB after review of the individual’s status, feels that such a reduction is justified in order to protect public safety. 

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Late last year, the Connecticut Legal Rights Project and Disability Rights Connecticut filed a class-action lawsuit with five named plaintiffs against DMHAS, the PSRB, and Whiting Forensic Hospital, alleging that the current system violates the federal civil rights of acquittees under the Americans with Disabilities Act and the Rehabilitation Act.  Recently, the first amended complaint was filed. The defendants have not yet filed a response.

People may recall that in the wake of a serious abuse scandal at Whiting Forensic Hospital, the legislature created a task force to “review and evaluate the operations, conditions, culture and finances of Connecticut Valley Hospital and Whiting Forensic Hospital.”  In December of 2021, the task force issued its final report, in which abolition of the PSRB was recommended by a majority of the members, and significant concern was raised by all members about the lengthy periods of commitment.

Senate Bill 926, which had a hearing before the Judiciary Committee earlier this week, and must be advanced by the committee before its March 31 deadline, would address one part of the PSRB system, a particularly pernicious part because the current process traps acquittees in the system. 

This bill would apply only to those acquittees who have reached the maximum term of their initial commitment to the board. The current process allows the state’s attorney to file a petition in Superior Court to extend the term of commitment. The Superior Court refers that petition to the PSRB, which holds a hearing under PSRB rules – which makes a person’s entire record of mental health treatment public, revisits the index event even if that event occurred decades in the past, and allows for participation by victims even if there has been no present threat to the victim [in anything other than the victim’s own imagination.]  The PSRB then makes a recommendation to Superior Court.  As you can tell by the diagram, it puts the person at risk of being trapped in a never-ending loop and never having the opportunity to return to the community as a full citizen.

In contrast, when a person has been convicted of a crime and sentenced to the Department of Corrections, when they reach the end of their sentence the state has no legal authority to continue to deprive them of their liberty – unless someone meets the legal standard for civil commitment to a psychiatric facility if it is proven that they represent a present danger to self, others, or are gravely disabled.  After a hearing in probate court, in which relevant evidence of someone’s present mental status is admitted pursuant to court evidentiary rules, a judge makes a determination that the legal standard has been met, and the person can continue to be held in the facility.  Civil commitments in Connecticut (unlike other states) are of indeterminate length; a person who is civilly committed is entitled to a clinical review once yearly and a review in court every two years.  This law was actually found to be in violation of the Connecticut constitution by the Connecticut Supreme Court in 1977.  In 2018, the Connecticut Legal Rights Project brought a lawsuit on behalf of a civilly committed patient. That litigation remains pending. 

The people who testified against SB 926 at the hearing seem not to understand that this bill does not remove all examination of safety concerns regarding a person at the end of their maximum term of commitment.  If the person continues to pose a threat to their own safety, the safety of other people, or remains gravely disabled, the state’s attorney can file a petition in probate court to have the person civilly committed. If the person is truly dangerous, presently, not based on assumptions people make about them because of their past history or the fact that the person has a mental health diagnosis, the probate court judge will commit them to the facility, and they will remain in the facility as a civil patient.  They will continue to work with their clinical team towards discharge and eventual return to society, but without having to continue to have details of their mental health treatment available for public consumption and reviewed by the board.  Their status will instead be reviewed by the Probate Court Judge in Middletown, whose many years of experience in holding these hearings means is probably more familiar with the concept of “danger to self or others” than anyone in this state.

The politically expedient thing in this situation is to let this proposal wither on the vine as the Judiciary Committee hurtles towards its March 31, 2023 deadline to advance bills out of committee.  After all, last year, in response to the Task Force’s recommendation of abolition, the legislature created a new working group, the members of which were selected by the Department of Mental Health and Addiction Services, and the make-up of which virtually guarantees it will come to an opposite conclusion.  How many more studies does this state need before it will take substantive action?

A dive into state archival material reveals that multiple reports have been written about the state of the mental health system in Connecticut since at least 1957. In a “Report on Relations between Department of Mental Health and Fairfield State Hospital State of Connecticut” to his Excellency Governor Abraham Ribicoff, Daniel Blain, MD and Charles K. Bush, MD noted that the then-Commissioner of DMH “emphasized that total improvement, in the face of serious increases in the needs of the people, could only be obtained through four major expectations: 1. That more people can be aided to stay out of state hospitals. 2. That the average length of stay be shortened. 3. That the rate of readmissions of patients be reduced. 4. That improvement can be made among the heavy backlog of chronic patients whose prognosis formerly was regarded as bleak.”

We do not need to wait for yet another report from yet another working group before we start to make the structural change needed to ensure that we do not violate the civil rights of acquittees, and to recognize that recovery is real.  This state has done a profound injustice to many people who continue to be confined unnecessarily when they rightly should have returned to our communities years ago.

The time for change is now.  The Judiciary Committee should advance SB 926, the legislature should pass it, and the Governor should sign it. It is time for elected officials to demonstrate that they have the political will to do the right thing.

Kathy Flaherty

Kathy Flaherty

Kathy Flaherty is a Newington resident and is Executive Director at the Connecticut Legal Rights Project.

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