Arizona's Insanity Defense, Clark, and the 2007 Legislature.

In the post-Hinckley era, four states (Montana, Idaho, Utah, and Kansas) abolished their traditional insanity statutes in 1979 in favor of what are in certain circumstances mens rea insanity statutes. These changes were controversial and attracted early attention of legal scholars and courts in the individual states and at the U.S. Supreme Court. A 2006 Supreme Court decision in Clark v. Arizona had distinct but related concerns that helped crystallize the Court's attention on both mens rea and traditional insanity defense statutes. This decision led to a dramatic precedent that may have settled these matters for generations to come. This article will discuss the changes in the Arizona statutory and case law and the interplay between these changes and the important decisions of the U.S. Supreme Court during the same time span. The result of the changes has led to a situation in Arizona where, for the most serious criminal defendants with mental illness, there is no current mechanism to acquit a defendant on the basis of insanity by a mens rea statute or otherwise.

The Ninth Circuit Court of Appeals and Jail-Based Competency Evaluation and Restoration.

The U.S. Ninth Circuit is the largest of the federal appeals courts, encompassing the states of Alaska, Washington, and Oregon to the north, Hawaii, Guam, and the Northern Mariana Islands to the west, California and Arizona to the west and southwest, along with the three intermountain states of Idaho, Montana, and Nevada. The landmass within the Ninth Circuit represents great diversity of geography, climate, population density, and cultural and political traditions. This article considers two landmark Ninth Circuit decisions, one from Oregon and the other from Washington, two states that share geography, culture, and political orientation. Informed by these decisions, we consider how the Ninth Circuit might view the jail-based competency evaluation and restoration programs in the state of Arizona. We explore: the due process rights of jail detainees who are awaiting an evaluation of trial competency; and the time necessary for admission to, and the adequacy of, Arizona's jail-based competency restoration programs after a finding of incompetency.

Mens Rea, Competency to Stand Trial, and Guilty but Mentally Ill.

The recent U.S. Supreme Court case of Kahler v. Kansas determined that the Kansas mens rea laws were sufficient to stand as the state's only insanity defense statute. In this issue of The Journal, Landess and Holoyda describe the legal reasoning that led to this decision and the persistent concerns about the wisdom of the decision. This commentary is meant to serve as a mirror image to Landess and Holoyda's article, as it focuses on the impact of Kahler on severely mentally ill individuals faced with criminal charges in the four mens rea states: Montana, Idaho, Utah, and Kansas. The authors assert that the absence of a traditional insanity defense disrupts the criminal justice process, adds the pressure of greater numbers of individuals pushed into the competency-to-stand-trial and competency-restoration systems, resurrects the guilty but mentally ill verdict from the condemnation of history, and forces people with serious mental iillness into prisons without any evidence that the prisons are up to the task of adequately caring for them.

Incompetent to Stand Trial, Not Restorable, and Dangerous.

This article focuses on the preferred disposition for an individual charged with a serious crime against another person, adjudicated incompetent to stand trial and not restorable to competence, whose original criminal charges are dismissed without prejudice, and who is regarded by the state as dangerous to the general public. Three current models used today in California, Oregon, and Ohio are described. All three rely on modifications of various aspects of civil commitment law. We then propose a fourth model based on a modified version of the 1989 American Bar Association (ABA) Criminal Justice Mental Health Standards, in which individuals who are found incompetent to stand trial and not restorable to competence and are considered dangerous would be committed under the same special procedures governing the management and treatment of insanity acquittees.

An overview of jail-based competency restoration.

Forensic populations in the United States are increasing, driven largely by a rise in individuals determined to be Incompetent to Stand Trial (IST). Across most states, including California, the number of mentally ill inmates awaiting competency restoration has increased dramatically in recent years. Traditionally, competency restoration has taken place in state hospitals, but incompetent inmates often experience a significant wait for state hospital beds because of the rising demand for beds in such facilities. The resulting waitlists, which range from days to months, have led to states being held in contempt of court for violating limits placed on how long incompetent defendants can be held in jail. Therefore, alternatives to state hospitalization for IST patients have been developed, including jail-based competency (JBCT) restoration programs. JBCT programs provide restoration services in county jails, rather than in psychiatric hospitals. The following article will review the nature of JBCT programs and will emphasize the structure and evolution of such programs within California.

Treatment Refusal in Arizona's Jail-Based Competency to Stand Trial Restoration Programs.

In 2003, Arizona began a jail-based restoration to competency program for detainees in its largest jail system in Phoenix. Today, jail-based competency programs have become the rule statewide to the degree that very few incompetent detainees are now referred to the Arizona State Hospital for restoration services. This article focuses on the topic of treatment refusal and the use of forced medications for detainees who are in these jail-based restoration programs. We describe Arizona's novel statewide jail-based programs, Arizona's statutory and case law approach to treatment refusal, and the restoration to competency programs in one large county jail that has no legal mechanism outside of civil commitment for the determination of whether forced treatment will be permitted. We conclude with a discussion of specific override procedures that might apply directly to incompetent detainees in a jail-based competency restoration program and whether the use of these procedures is prudent in a jail environment.

The Migration of Arizona's Post-Insanity Defense Procedures to a Modified GBMI Model.

Arizona's insanity defense and post-insanity procedures have evolved over the last 30 years into a unique system. Arizona moved from a typical M'Naughten-based insanity defense to an adaptation of the Oregon Psychiatric Security Review Board (PSRB) model and then to its current form, in which the PSRB is cast in a correctional framework. These changes have resulted in a correctional statute, with outcomes that may subject the guilty except insane (GEI) offender to a disposition similar to that of someone found guilty but mentally ill (GBMI). We review the literature on the GBMI defense first developed in Michigan in the 1970s and compare Arizona's current system to the earlier GBMI models. We conclude with a discussion of Arizona's GEI verdict and implications of managing these offenders in a correctional framework, resulting in a modified GBMI statute.