Can You Be Both Insane and Guilty?

King County Prosecutor Mary Barbosa infuriated Michael Robb's family when she accepted a "not guilty by reason of insanity" plea from his killer, Samson Berhe.

State Senator Mike Carrell, R-Lakewood, is frustrated that current law allows for only two options when someone either admits to a crime or a jury decides they committed one--find them guilty and throw them in prison or find them insane and let them off the hook via a trip to Western State Hospital. Carrell claims there are people at the Tacoma-based mental health facility who "may think the Devil or God told them this is what they should do, but they are fully able to plan and know the effects of what they're doing."

Rather than let those people go into the mental health care system while being found innocent of a crime, he'd like to see them found "guilty but mentally ill", sending them into prison, but with more concerted efforts at mental health treatment and supervision on release. Today he introduced Senate Bill 5253[PDF] to create that third option.

Barbosa says she really had no choice in Berhe's case. If he went to prison, he'd have minimal treatment for the drug-fueled schizophrenia that led to incidents escalating from pouring water through the house to "wash away the devil", to threatening his family, and finally murdering Robb. Not only that, but Barbosa says he'd be eligible for parole in about 20 years. "He would have been a very young, dangerous man getting out around 40," Barbosa said at the time.

Carrell's bill is in part to deal with what he sees as a miscarriage of justice, but he says he's also hoping to sell legislators on the other side of the aisle on the idea that there will be more options for mental health treatment in jails. He adds that he expects liberals to like the idea that the law could be used to prevent mentally ill people from going into Western State where, without a set release date, they might remain for the rest of their lives.

But Carrell appears to be wrong about any cross-aisle hand holding.

"I gotta tell you, this is a non-starter," says Sen. Adam Kline, D-Seattle, chair of the Senate Judiciary Committee. (The bill will actually be heard before the Human Services and Corrections Committee, the chair of that committee, James Hargrove, hasn't reviewed the bill yet.)

Kline says Carrell's bill crosses an ideological divide by criminalizing mental illness. He adds that insanity defenses are rare due to the strict standards used to measure it. Everyone found guilty, many of them also suffering from some kind of mental health issue, are already in prison, which is where Carrell's bill would put them. "The largest population of mentally ill people is not in Western State, it's in the jail."

Rather than pass legislation changing the criminal plea and sentencing laws, Kline wants to see a bill putting more money toward treating the mental illnesses in the currently incarcerated population. Though in this year of drastic budget cuts, such a bill would face some pretty steep hurdles of its own.

But Kline doesn't really see Carrell's bill as a serious attempt at legislation anyway. "When this bill dies, which it probably will, they will blame Democrats in November 2010 for being soft on crime," he says. "It's not about real social policy."

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