Illustrated Daily; 5043; The Illustrated Daily #5042

You You You One

of the problems with mental retarded people is that they do not know that they are mentally retarded. They do not want to admit that to a term that has been abused by society and is used as a term of ridicule. They don't want to be labeled as being mental retarded so they deny the fact. So when they are arrested and they go to court, for example, they don't bring that, they don't say. I'm mentally retarded. Go look at my records and if the public defender or the attorney who is working for this individual does not recognize and is not trained to recognize mental retardation, might never ask the question. So the person will go to court but a lot of questions are brought about this individual's mentality. They'll say, well, he was just slow. That's one of the most common terms that I've heard. But slow is not, it's not a legal definition. The

Illustrated Daily, managing editor Hal Rhodes. Good evening. Last night here at the Illustrated Daily, we took an initial documentary look at a poorly understood problem in our criminal justice system. The mentally retarded individual who becomes ensnared with the law and eventually ends up in places like the New Mexico State Prison. Roughly 3 % of the American population is believed to be mentally retarded and unlike mental illness insanity. Mental retardation does not exempt an individual from criminal responsibility or criminal prosecution. What's more, for reasons perhaps unique to this state, New Mexico's mentally retarded prison population is generally thought to be larger than the national average. Tonight, a follow -up on last evening's documentary. And momentarily, we will be talking about these matters with District Court Judge Woody Smith, Professor Ruth Lukerson of the University of New Mexico's Special

Education Department, Robert Schwartz, Chief Deputy District Attorney for Bernalillo County, and Dr. Mary Flanagan of the New Mexico State Prison Special Unit for Mental Health. First, however, another look at some of the critical issues surrounding this subject. Here, in the 5th, in the 5th, of the 50th, Santa Fe, I am Cuban Pedro Arias. How do you like it? Thank you very much. Okay. Hello, Ruth.

Hello, how's it? Hello, my boy. Hello, people, how are you? I'm fine. Peace, my boy. Peace, my boy. Peace, my boy. Peace, my boy. Peace, my boy. Peace, my boy. Mental retardation is not equated with stupidity. Mental retardation people are not stupid. Mental retardation people are not insane. If you find that range when you're making a dividing line between mental retardation and what we consider normal and what is normal, for one given society, for one given culture, it means something different. The American Association for Mental Deficiency has established three criteria for diagnosing mental retardation. Deficiencies in adaptive behavior, personal independence, and social responsibility. Evidence of sub -average general intelligence. And evidence that these deficiencies

occurred prior to an individual reaching the age of 18. Inmates of the New Mexico State Prison, who have been diagnosed as mentally retarded, generally meet these three criteria. All be it in a mild to borderline category. One of the major problems that retarded people have that are involved in the entire criminal justice system is first of all being recognized. And if they are recognized, being appreciated for what their special needs are, or for people to appreciate the characteristics of the condition of mental retardation. One of the problems with mental retarded people is that they do not know that they are mentally retarded. They do not want to admit that to a term that has been abused by society and is used as a term of ridicule, they don't want to be labeled as being mental retarded, so they deny the fact. So when they are arrested and they go to court, for

example, they don't bring that, they don't say, I'm mentally retarded, go look at my records, and if the public defender or the attorney who's working for this individual does not recognize and is not trained to recognize mental retardation, might never ask the question. So the person will go to court, but a lot of questions are brought about this individual's mentality. They'll say, well, he was just slow. That's one of the most common terms that I've heard, but slow is not a legal definition. Well, I don't know that they slipped through undetected. It may be that there's some awareness, some rough awareness or rough idea that there's a problem, but lawyers aren't skilled in diagnosing those things, and if they can communicate with their client and fashion of defense, then they're not alerted to anything. Lawyers who deal with repeat offenders, many of whom are uneducated or poorly educated and have low literacy levels and low

communication skills. They're kind of used to struggling through those kinds of relationships, and I think they would trip over any situation involving a defendant who had such a serious impairment that it meant he really shouldn't be prosecuted. So that's the safety catch. If the defense lawyer notices something that seems to him strong enough evidence of mental problems that it should divert what's going on from the criminal justice system into the mental health system, that's where the catch is. Even though a mentally retarded person might be able to participate in his defense, he can't fully participate if he doesn't fully understand what the procedures are and what the consequences of the act that he's been accused of are. And quite often the retarded person simply does not understand this. Quite often a retarded person or not quite often, but occasionally a retarded person will

confess to a crime that he did not commit simply because the interrogation process is uncomfortable for him or he doesn't fully understand what rape means or some other term that is being used. But because they're mentally retarded or developmentally disabled or suffering from any other mental illness doesn't necessarily mean they're not responsible for their conduct. And the process is supposed to assure that only people who are responsible for their conduct end up in prison, but because so many cases are pledged, there aren't real tests in many instances. I suppose some folks end up in prison probably who belong in the state hospital. Resources in the state hospital are limited, I think it's been demonstrated succinctly recently. I think that's one reason why we probably have more people with diagnosed mental disorders in our system than the average prison system throughout the country. What does mental retardation mean to you? I don't know, it just

don't really know what it means, but what it means is that you don't have an attitude. A special problem for both those who work with our mental health and our criminal justice systems, the mentally retarded individual who becomes ensnared with the law and our penal systems. Judge Woody Smith, we heard it last night in the documentary, we heard it repeated again here this evening. The problem of the mentally retarded individuals ability to participate effectively in his or her defense. The view from the court, can we be certain that overwhelmingly the bulk of the cases, justice is done in these instances? First of all, it's difficult in most cases to make sure that justice is done, but in this but stiffly case, there are safeguards. Any time that a judge takes a plea from a mentally retarded

or any defendant, you have to assure that he or she knows their constitutional rights, that there's a factual basis for the events that they're charged with, and that they effectively waive all of their rights. The difficulty is, as was stated in the little recap of last night's program, is determining whether or not they really do. And unless I, as a judge, are somehow made aware that there's a problem, I can see possibilities of someone slipping by and just going along with the system and agreeing with their attorney and saying yes to all the questions, which is generally the right answer. There's so much burden put on the attorney, and that's where it has to be. The Sixth Amendment of our Constitution assures everyone the right to have an attorney. That means competent representation. If you get a competent attorney, an attorney will investigate the facts of the case, and if it appears there's something strange, this person was just

falling along and was not a real member of any crime, or then there's probably a problem with his attorney. There's intelligence or something, there's something there, at least to look at and investigate, and then that has to be brought to the attention of the court. All right. The larger issue here, which this whole story defines, it seems to me, and we've heard it alluded to all along the way, is there are a number of points along the way critical to the mentally retarded individual who does become ensnared with the law. From the point of understanding the nature of wrongdoing itself, understanding even the meaning for instance that they mentioned the moment ago, the term rape, what even that means, on through to the point of understanding the individual's rights, his or her rights as the case might be, on to the point that an individual say should be incarcerated at a state penal facility. When you take this

continuum at all these points, where is the system most vulnerable, where is the system most effective, in dealing with this problem in an understanding and compassionate way? I believe the system is probably most vulnerable, just in the huge amount of cases that come through the court and the possibility of something like you stated slipping through. It's also a problem for judges in this state, because I generally have two choices, when I sentence a person who's been convicted of a crime, one choice is to sentence them to the Department of Corrections, the State Penitentiary, the second choice is to give them probation, and it's sad to say, but that generally means nothing, not very much follow up. There are no programs, there are no facilities to put mentally ill people and mentally retarded people into the system.

A mentally retarded person is treated in our system, the same way someone who has a mental illness is treated, and the same responsibility, if he or she is able to understand the nature of their acts, is able to aid in their defense, they will go to trial. And if they understood the nature of their acts and could control them, there's no defense there, because they might be retarded and not have an high IQ. All right, they are treated that way, although in law there is a distinction, of course. There has to be, there is a distinction. Right, let me ask you this, you mentioned as did the Correction Secretary Frankie last evening, that a great deal of the burden of responsibility in these instances fall on the shoulder of the defense attorney. Do prosecuting attorneys, and you're a former prosecuting attorney yourself. Do prosecuting attorneys in these instances bear any special responsibilities from your point of view? Yes, they do, as a matter of fact, as far as whether or not someone is competent to go to trial or competent to inter -replea of guilty

to certain charges, they're required if there is a problem to bring it to the attention of the courts. And in several cases, the first time this has brought to anyone's attention is through the prosecuting attorney. For other reasons, tactical, the defense attorney and his client may not want to raise the issue of competency. I've had to experience this here. Why would that be the case? Because sometimes under our system, again, I, it's sad to say, but what can happen to a person who is incompetent to go to trial sometimes is much worse to them. As an individual, then what might happen to them if they were not incompetent went to trial or put guilt and were convicted? Meaning what? Meaning that you might be put into the system for years. There's no real treatment program. People get lost in the system. When you're incompetent to stand trial, you're required generally to be incarcerated somewhere. There are cases where you don't, but generally the person who isn't competent to go to

trial is really incarcerated to the hospital or something. So the system is vulnerable, is what you're saying. I think it is vulnerable. Mr. Schwartz, I'd like to pick up on the question I just asked the judge. The responsibilities of prosecuting attorneys, your chief deputy district attorney for the county of Bernalillo. What's your perception of your special responsibilities as a prosecutor in these cases? Well, our responsibility as a prosecutor is to anyone that's brought into the criminal justice system is, quote unquote, to do justice. We have to actually work both sides of the street. We have to make sure that the defense attorney is doing his job and we have to go ahead and nevertheless in that context effectively do our job. Now, confronted with some of the things that Judge Smith said, if we become aware that an individual, and if we're talking here in the context strictly of retardation in those types of developmental disabilities, if we are aware, yes, we will raise the issue of competency, but of course, how do we become aware as the

prosecutor is the state? We are not allowed access to that defendant. We have very, very limited contact, if any contact with him, all the way through the criminal justice system until perhaps the final point in the case is resolved. Sometimes we can tell just by the bizarre nature of a criminal act, we can look at something and say that this is so unusual, so strange that there must be a mental problem that at least needs to be looked into. I mean, it just becomes obvious from the nature of the act that we're prosecuting, but in terms of asking for competency, we have to do that because if we go ahead and try and prosecute an individual who we may feel may be found incompetent by a court at a later time, then we have misused the taxpayers' money, we have misused the system at that point. All right, mental competency, mental retardation is not a defense, mental competency is an issue in the defense. What causes a mental competency test to be administered to an individual who is in the grips of the law in these cases, in specific cases, and do

mental competency tests reach issues like mental retardation? They can, they can, and it simply can be a cause and effect relationship that if someone is found to be incompetent, that the cause is his mental retardation. It's as simple as that. It is not a defense in a sense because competency means that an individual cannot be prosecuted at that time because he doesn't have the ability to understand the system that he's either thrust himself into or been thrust into. But I want to get back to one point that you mentioned about mental retardation not being a defense, it can be a defense. In most cases, it is not because it won't fit the legal requirements, but there is nothing to say that it can't. All right, but what causes a mental competency test to be administered? Awareness by somebody along the line in the system that there's something wrong. That would include the prosecuting attorney. Absolutely. Have you and any specific instances done that where you had read it? It is quite common for a prosecutor on his own behalf to move the court for a question of competency. It is quite

common for a judge to do it, but again, the problem that we have, and I view it as different from the defense attorney, and I noticed remarks from last night's show by Secretary Frankie about how the ordinary give and take of a attorney -client relationship in a criminal setting. You might overlook it. You might think this is just another bread and butter day -to -day kind of case. We don't have that contact. We're not allowed to have that contact. And so just they say, I guess if there's one way to do it is we look at an unusual act and say there must be something wrong with this guy. Or if at the very limited court proceedings that initiate a case, there's some obvious, something obvious. But it's got to be glaring, or we'll never catch it, because we have no other means to discover. All right. Somebody else, Secretary Frankie, raised last evening, and that is, deals with the question of how come New Mexico has a larger, has a larger than national average mentally retarded in a population. He thought perhaps had something to do with the fact that we have a

weaker than average mental health system in New Mexico in general. Have you any thoughts on this? Well, I don't discount that as a factor to what extent though I wouldn't speculate. But I think if you will look at the figures, I think New Mexico has a growing prison population in general that is growing faster than the national average. So I think that if you would look in a myriad of categories, you would find that New Mexico has a larger than average, if we're talking relation to national averages, percentage in whatever given category. Because a statistical matter mostly. I think so, it's just the criminal justice in this state in the last few years has really become a growth industry. And the prison population, if I'm right, we have, it has, you know, in the past three, well, I guess four years or so, but I think at least the rate of people being incarcerated, I think is almost tripled. So I'm not surprised to see that other categories are being brought along with the general trend. All right. Dr. Flanagan, you work in this growth industry with the prison's

mental health unit. Same question. You and I observations on how comes it to be we have a larger than average mentally retarded inmate population. I think it has to do with the growth, but I also think that New Mexico in general has a very scarce amount of resources for people who are mentally ill or mentally retarded in the communities. And so I think that certain people who may not function very well outside on the streets and need institutionalization of some kind or another will offend and come back into the institution. And the mentally retarded recidivate at 50%. And part of that, I believe, in New Mexico is due to the facts. Is that higher than you would expect from the general inmate population? Yes. It's about 15 % higher than you would expect. So recidivism on most mentally retarded inmates is higher than the rest of the population in general. One issue which deals with how to accommodate the special needs of the mentally retarded inmate population at state prisons like ours here

in New Mexico. Should they be mainstreamed as sometimes argued that is built into the general prison population or should special accommodations, even segregation of them from the inmate population in general, be the objective. What's your personal view on this? I think that basically we have to have special housing for the mentally retarded. If we don't, what happens to these people is they go out into general population units, they become victimized, they become abused. And they just can't make it with the regular population and live with any kind of dignity. So I think that the special housing units are important and the special treatment units are important. However, I think too, and this is something that we are currently involved in, if an inmate can make it at a medium security facility like Los Luna or Southern, that they're better off in those environments because they are the least restrictive environment and certainly less restrictive than the penitentiary. I should have a new state penitentiary facility opening in the spring, at which point

some implementations and some innovations and programs will be possible. What will be the policy objectives of the corrections department with reference to handling and accommodating the mentally retarded inmates when that comes to pass? What we will be doing is we will have a special housing unit that will accommodate 96 inmates and that will include both mentally ill and mentally retarded. It's a pod system so that mentally ill can be isolated from the mentally retarded if that occurs. But one of the problems with that is that we have the majority of our inmates who are retarded or borderline also have mental illness along with that. So, it becomes a question of, you know, do you put them with the mentally retarded or do you put them with the mentally ill? Professor Alucarsson, inevitably I suppose, that we would expect to hear as we have heard, penal authorities suggest that at least part of the problem associated with the mentally retarded individuals who get

ensnared with the law eventually has to be traced back to our schools, failures, failures early on to diagnose these problems, failures early on to equip individuals to deal with their social responsibilities. Is this a problem? I think it is a problem, but it's not the most significant problem in the issue of people with mental retardation and trouble with the criminal justice system. Part of what happens as people with mental retardation become involved with this system is that certain characteristics of theirs cause them to be caught up in a way that they rely on them. For example, often people with mental retardation are very acquiescent and very eager to please people that they perceive to be authorities. And so, if, when interviewing a person with mental retardation, the police officer or the lawyer or the judge suggests what he or she wishes the answer to be,

for example, you do understand that you're waving your right to a jury trial, the person with mental retardation will pick up on those cues and will give the answer that they think is expected and so they will be saying yes, or they will... Which brings us full circle. That's right. Another thing that happens is that, as was pointed out in the tape last night, people with mental retardation will often try to hide their disability. And if we don't pursue the questioning, they'll get away with hiding it. For example, I can remember interviewing a man who had pled guilty to a very serious felony. And as I questioned him about what guilt meant, it became very clear that he believed that guilt meant feeling bad about something. And he indeed felt very, very bad about the crime and felt just awful about what happened to the victim. And so he thought that feeling, feeling this way should

cause him to say he was guilty. All right. Take an individual like this, assuming that on these problems have not been diagnosed, remedy to the extent they could be remedied early on in the individual's life. And by the time we consigned into institutions like state prisons, even innovative institutions of the sort, Dr. Flanagan was talking about the moment ago. You're an expert in special education dealing with the mentally retarded. What if anything can be done? Well, with resources, we could do a great deal. We could teach vocational skills, we could teach social skills, we could tell people how to get a job, we could teach them to interact with other individuals. There are a lot of things that could be done with proper resources and with proper identification. I'm not sure that that's always our major concern with these people. Sometimes our concern

is just to protect them. These are very vulnerable people and they're easily exploited. Put in a very, very dangerous situation. Just Miss, I think we have about 15 seconds. You're bad. Are we going to get those kinds of resources? I doubt it. I know judges aren't supposed to be bad, but I mean, if I could. I would doubt it. If I was in Las Vegas and able to bet legally, I would bet that we don't get them for a while. Would you bet against him? I don't like bet against judges. Folks, our time is up. Thank you very much. You've helped us better to understand this rather disquieting story. I appreciate a lot. Fred, that's it for tonight. Tomorrow, amid the screeching headlines of alleged extortion and wrongdoing surrounding state investment activities, a detached but closer look. Meanwhile, thanks for joining us. I'm Hal Rhodes. Good night. Good

night. Good night.