Beyond a just sentence


Beyond-a-just-sentenceBy David Shaheed

The last phrase in the Indiana Oath of Attorneys reads, “I will never reject, from any consideration personal to myself, the cause of the defenseless, the oppressed or those who cannot afford adequate legal assistance; so help me God.”

People become lawyers for many reasons. The Code of Professional Responsibility in most states of the U.S. and canons of judicial ethics remind us as attorneys and judges to be aware of the rights of the least of us who have need of legal representation or who may be in court. However, most attorneys and judges will readily admit that they are not prepared in law school for the special challenges presented by people suffering from mental illness or disease.

Most of us are profoundly touched and saddened by the senseless loss of young lives and caring adults at schools like Sandy Hook Elementary School in Newtown, Connecticut, or the University of California in Santa Barbara. Those tragedies and others have started a national conversation on gun violence and the community response to mental illness and disease. Law enforcement and the courts are often the first to observe behaviors which suggest mental health issues. Usually they are not as tragic as Sandy Hook.

There was a story on National Public Radio “Morning Edition” that spoke of people being lost in prison or jail. They are arrested and sometimes they get lost in the system without getting a trial or even a hearing. One man was in solitary confinement for almost two years, awaiting trial.

As the story noted, almost one-half of these defendants are people with mental health issues. They cannot advocate for themselves, they cannot afford an attorney and generally do not have a family member to advocate for them.

In addition to the human dimension of this problem, there is the very practical problem of costs. Estimates vary from $25,000 to $30,000 per year to incarcerate a person. In Indiana, the per diem is $55 per day to feed, house and maintain an incarcerated individual. This does not take medications into consideration.

Who pays for this? All Americans do, as taxpayers. Therefore the courts are in a key position to extend a life preserver to a human being who may be lost in a sea of delusion and disease. Although it is not a traditional role for the courts, it is becoming and has become the more enlightened way to work with defendants who exhibit mental health issues after being arrested and brought to court.

Since these people are still our neighbors, what is our responsibility to them when we see that they are suffering and their suffering is the root cause of their being in court? Even though their problems are more difficult for the court to respond to, do we leave them in jail because we don’t want to take the time to pull together the resources to help them repair their lives? Can we say that we are living our lives of faith if we turn our backs on our neighbors who are not capable of asking for the help because of their illness?

It is almost impossible to live in the U.S. or Western countries and never have heard the parable of the Good Samaritan presented in the New Testament. It is a powerful reminder of our obligation to help our neighbor who is in a vulnerable situation.

As a Muslim, I am also familiar with passages in the Quran that convey the same concept; for example, love for God is best demonstrated by showing love for our suffering neighbors. Irrespective of our choice of religious institution or orthodoxy, we understand the values conveyed in the parable.

However, we may struggle with how to incorporate this concept and principle into our daily lives. In other words, it is much easier to cross to the other side of the road than to assist the victim in our path. For judges, it is considered routine and part of our traditional training to set a case for trial, preside over the trial and send the defendant home if she or he is found “not guilty” or set a date for sentencing if found guilty of the offense.

The uncomfortable challenge presents itself when a defendant is obviously suffering from mental problems and we know that jail is not the proper place for this person.

We must accept the fact, as judges, that when we try to respond to the needs of those in our court with mental health issues it will not be “business as usual.” The case will be on our dockets longer because of the special monitoring needed for this defendant. We must concern ourselves with medication for the defendant and who will pay for it if they cannot.

Also, as judges we have to recognize that we will have to be more personally engaged with the defendant and their outcome as compared to a regular case. Needless to say, we are not taught these skills in law school.

These were some of the issues I was presented with when I learned that our court system was about to discontinue the effort to monitor some defendants with mental health problems. It was a clear and unequivocal opportunity to consider and demonstrate “love of neighbor” where the neighbor in need is unpopular, unsavory and difficult to assist.

I did not eagerly approach this task, because being on the bench nearly 20 years, I am keenly aware of the egos and sensitivities of my colleagues. Of course there is the political dimension, since we all have to stand for election. My criticism of the proposed “phase out of mental health court” was also met with comments that it was no longer my concern, since I am now in a civil court and no longer a criminal court judge.

However, I must admit that my exposure to the Art of Loving that I got to know through the Focolare inspired me to look beyond the criticism to the people that would benefit from a more compassionate and responsive court. In 2005 at the Focolare-sponsored International Legal Conference on Relationships in the Law, I met other lawyers and judges who really try to love their neighbors in their practice of law. That experience convinced me that lawyers and judges can also think with their hearts as well as their brains.

Also, my own personal experience, such as when a defendant with mental health issues awaiting trial in my court was killed in jail by a gangbanger because he accidently stepped on his foot, compelled me to act.

Several years ago, I was involved in starting a Reentry Court, which helped ex-offenders obtain jobs and avoid the trail back to prison. After that experience, I felt comfortable asking enough awkward questions that my busy and equally overwhelmed colleagues paused to consider the consequences of this policy decision. I was careful, however, to ask these questions in a way that respected my colleagues. I know that there are no bad actors involved in these decisions, merely good people facing the pressures and demands of a difficult job, declining resources and a difficult population to serve.

Fortunately, as we started to talk about how to serve mentally ill defendants, we became more comfortable with looking for other options and possible solutions. Our ethical values were renewed and our moral conscience revived.

We are now on a path, as a court, to pick up those defendants who may have become lost in the system. With the assistance of local not-for-profit organizations, funding has been located for a Mental Health Court to more effectively serve defendants with mental health issues.

Judge David Shaheed has been working on the Marion County Superior Court in Indiana since 1994 and presided over the county’s Drug Treatment Court from 2003 until 2007. He is currently on the executive committee that advises on matters related to drug treatment and mental health.

Reprinted with permission from Living City Magazine – Aug Sept 2014.