The Advocate, Vol. 20, No. 1 (January 1998)
 
Challenging Kentucky's Guilty But Mentally Ill Law

In Gall v. Commonwealth, 607 S.W.2d 97, 113 (Ky. 1980), the Kentucky Supreme Court, reviewing conflicting mental state evidence, took the unusual step of "commending" to the General Assembly the enactment of a statute authorizing verdicts of guilty but mentally ill (GBMI). In 1980, only two states--Michigan and Indiana-- authorized GBMI verdicts. That situation was to change in 1982, when John Hinkley, Jr., was found insane and acquitted of charges of assaulting then President Ronald Reagan. That year nine additional states, including Kentucky, adopted GBMI laws.

KRS 504.120, et. seq., allowed juries, as urged by the Gall Court, to resolve doubts about an insanity defense by returning a GBMI verdict. For the next fifteen years, Kentucky's experiment with GBMI remained free from direct constitutional challenge.

In 1996, the Court signaled a change ln its view of GBMI statutes. The defendant in Brown v. Commonwealth, 934 S.W.2d 242 (Ky. 1996), asserted that Kentucky's GBMI law denied him his due process right to present an insanity defense and that the GBMI instruction misinformed the jury as to the consequences of its verdict. While finding insufficient evidence in the record to support Brown's arguments, the Brown courtin language ironically reminiscent of the Gall Court's solicitation of GBMI legislationsuggested that it was ready to give serious consideration to a constitutional challenge to GBMI verdicts. The Court observed that it was "gravely troubled by a method of punishment which appears to be nothing more than a charade, cloaked in a verdict, GBMI, which amounts to nothing more than an oxymoronic term of art." Id. at 245. A dissent by Justice Wintersheimer described the majority's opinion as "an engraved invitation... to challenge the validity of the statute." Id. at 249.

Following his appeal, the appellant in Brown declined to pursue a post-conviction challenge to the GBMI law. Thus, the case that may serve as a vehicle for successfully challenging Kentucky's GBMI law remains to be found. However, after Brown, it is clear that the GBMI law is vulnerable. Much of the evidence that would need to be marshalled in support of such a challenge is also clear, and DPA's Post-Conviction branch has begun the process of gathering that evidence for use in an appropriate case.

A successful challenge will likely rest on two key elements: first, that a verdict of GBMI carries no consequences different than those carried by an ordinary guilty verdict, and is therefore nothing more than a guilty verdict with the addition of the phrase "but mentally ill;" and secondly, that the GBMI verdict option results in the conviction of individuals who would otherwise be found not guilty by reason of insanity.

There is No Difference Between A GBMI Verdict and A Guilty Verdict

In establishing the verdict's lack of meaningful difference from a guilty verdict, it should first be understood that a GBMI verdict carries no legal consequences. In particular, the verdict is not a substitute for involuntary commitment proceedings under KRS Chapter 202A.

Ordinarily, if a jury returns a verdict of not guilty by reason of insanity (NGRI), the next logical step is for the Commonwealth to seek to commit the defendant under KRS Chapter 202A. The defendant would then receive around the clock treatment and psychiatric care. DPA's investigation of Corrections' procedures for intake of GBMI inmates, however, shows that Corrections processes the GBMI inmate through general intake in substantially the same way it processes any prisoner entering the prison system. The GBMI inmate is nol automatically classified to the psychiatric hospital at KCPC. There is no automatic 202A hearing. Only when Corrections has itself determined that the inmate requires treatment does it take steps to seek treatment, and if the inmate refuses treatment, he can only be treated following a due process hearing under 202A. Thus, the procedures observed by Corrections for treating GBMI inmates do not differ from those for treating any other inmate. Both practically and legally, a GBMI verdict has no legal consequence with regard to the treatment of the GBMI inmate.

As a matter of law, a GBMI verdict is not a substitute for an involuntary commitment proceeding. If it can be additionally shown that Corrections' treatment of those GBMI inmates willing to undergo treatment is, at best, erratic, it then follows that Kentucky courts misinform jurors by instructing them that if they convict a defendant as GBMI, "treatment shall be provided to the defendant...."

That treatment of receptive GBMI inmates is erratic is strongly suggested by Corrections' data on GBMI inmates. The data show that there are currently 68 GBMI inmates in Kentucky prisons. Of those, only seven are held at the Kentucky Correctional Psychiatric Center. The rest are housed at other institutions where continuous medical monitoring and daily therapy are unavailable. Indeed, eight inmates are housed at minimum-security institutions where regular medical staff is limited to a single nurse practitioner.

A lack of automatic treatment procedures for GBMI inmates is also indicated by the experience of the defendant in Brown.

In 1985, Brown, a former postal worker and military veteran with an honorable discharge, attacked members of his family with a hatchet. Brown's father and brother died; his mother and sister were seriously injured. Brown had no prior felony or misdemeanor record, nor any history of drug or alcohol abuse. His family had no history of abuse or dysfunction.

Brown was found incompetent to stand trial and was committed to Central State Hospital where he remained until 1992, when he was determined to be competent. During his seven years at Central State, Brown was continuously on medication, was under medical observation 24 hours a day, and participated in daily therapy sessions.

At his trial, the jury was instructed that if they found Brown GBMI, he would receive a sentence, but that "treatment shall be provided to the defendant until those providing the treatment determine that such treatment is no longer necessary or until the expiration of his sentence, whichever occurs first."

Once placed in Corrections custody, however, Brown received a less than comprehensive mental evaluation in a non-clinical setting. Because of his GBMI verdict he was housed in a special dorm for inmates with a mental health history, but received no treatment incident to that housing assignment. His medication was continued, but Brown, acting on his own, eventually stopped taking it. When he refused further medication, Corrections took no action, not even offering medical advice. One year after his incarceration, Brown's only "treatment" consisted of purely voluntary, and sporadic, participation in a "violent offender group."

A juror in Brown, experiencing post-trial doubt as to the verdict, wrote to t.he presiding judge that, "[a] factor in our sentence deliberations was our belief that...Brown would get special treatment in prison because we had found him 'guilty but >>>>>>>>>>>>>>

But Brown's experience that GBMI inmates do not mentally ill' instead of just 'guilty. and Corrections intake procedures show receive special treatment. Under these circumstances, the GBMI law gives rise to a constitutionally unacceptable risk that jurors will be mislead as to the meaning of a GBMI verdict--that is, that difference between a simple when in fact there is none.

They will believe there is some "guilty" verdict and a GBMI verdict, Juror ignorance of such a lack of any real distinction may "induce compromise verdicts by seducing jurors into settling on a middle ground between guilty and not guilty, when in fact there is no middle ground." State of New Mexico v. Neely, 819 P.2d 249, 261 (N.M. 1991) (Montgomery, J., dissenting).

The GBMI Law Promotes Compromise Verdict

Like the lack of any legal or factual consequences, that GBMI laws lead to compromise verdicts may be element in challenging the statute. A number of empirical studies a showing a crucial supporting such a showing were cited in the appellant's brief in Brown.

A 1986 study used 145 mock jurors to assess the impact of GBMI instructions on jury verdicts. Savitsky, J. and Lindblom, W., "The Impact of the Guilty but Mentally Ill Verdict on Juror Decisions: an Empirical Analysis," Journal of Applied Social Psychology, 686-701 (1986). The study concluded, "when the GBMI verdict was available, there were few NGRI verdicts." Id. at 699. The researchers also concluded from their data that, "[t]he availability of the GBMI verdict may well encourage jurors to convict innocent defendants on the basis of irrelevant mental health concerns." Id. at 699.

A 1987 study examined "whether individuals are less likely to reach judgments of insanity when given the GBMI option." Roberts, C., Golding, S., and Fincham, F., "Implicit Theories of Criminal Responsibility - Decision Making and the Insanity Defense," Law and Human Behavior, Vol. 2, No. 3, 207-232, 211 (1987). One hundred and eighty one mock jurors were asked to choose verdicts in response to two vignettes depicting violent acts by mentally ill defendants. The researchers found that when GBMI was offered as an option, verdicts of NGRI dropped from 60% to 29.5% for one defendant and from 77% to 27% for the second. The study concluded that "[m]ost lay persons would prefer to utilize a GBMI option as a compromise verdict even in the most obvious cases of 'real' insanity." Id. at 226.

Similar conclusions were reached by a study in 1990: "We observed that when the GBMI verdict was made available to jurors it resulted in a twofold effect namely, we observed approximately a two-thirds reduction in both NGRI and straight guilty verdicts." Poulson, R., "Mock Juror Attribution of Criminal Responsibility: Effects of Race and Guilty but Mentally Ill (GBMI) Verdict Option," Journal of Applied Social Psychology, 1596-1611 (1990).

A 1991 study further builds the case that the GBMI option leads jurors to reject an NGRI verdict they would otherwise reach.

Roberts, C. and Golding, S., "The Social Construction of Criminal Responsibility and Insanity," Law and Human Behavior, Vol. 15, No. 4, 349-375 (1991). The researchers found that rates of NGRI verdicts dropped from 60% to 35%, and "represented a shift from a probable to an improbable NGRI verdict." Id. at 368. The researchers concluded that: "These data demonstrate clearly that the GBMI judicial instructions and verdict option significantly reduce rates of lay persons' individual predeliberation NGRI verdicts in vignette cases involving floridly psychotic defendants whose delusions are closely related to the nature of their criminal acts."

Finally, a 1993 study, whose findings were consistent with those of the studies cited above, posed this conundrum:

Certainly it remains an interesting puzzle as to why a majority of persons are willing to adjudge psychotic persons with minimal reasonability capacities as insane under traditional...instructions, while a substantial majority of persons adjudge the same defendants as 'functionally guilty' under GBMI supplemented instruction's. Id. at 274. A GBMI verdict may present a very attractive compromise to a jury struggling with a difficult decision as to a defendant's sanity. Citing the law's promotion of compromise verdicts, the Illinois Court of Appeals this year became the first appellate court in the nation to invalidate a GBMI law. People v. Robles, 682 N.E.2d 194 (Ill. App. 1997). Here in Kentucky, the Cabinet for Health Service's Task Force on Law, Violent Crime, and Serious Mental Illness referred to the Roble decision in their October 1997 recommendation that Kentucky's GBMI law be repealed.

Conclusion

More evidence needs to be developed to challenge Kentucky's law: evidence as to Corrections intake procedures and treatment (or lack of treatment) of GBMI inmates, expert testimony as to the clinical inappropriateness of utilizing a prison as a "treatment environment," statistics on the impact of GBMI verdicts on the number of acquittals by reason of insanity in Kentucky and nationally. DPA's Post-Conviction branch is working to develop this evidence so that it will be available for use, at trial, by defendants

wishing to challenge the law Anyone interested in challenging the GBMI statute, and who believes that his or her client's case is appropriate for presenting such a challenge, should contact DPA's Post-Conviction branch in Frankfort for assistance. It's time that the GBMI law's promise to jurors that by convicting an insane defendant they insure he will be treated is exposed for the falsehood it is.

Linda K. West
Assistant Public Advocate

Marguerite Thomas
Assistant Public Advocate
Post-Conviction Branch
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
Tel: (502) 546-3948
Fax: (502) 564-3949

Below is a sample motion for an evidentiary hearing that was made by Kelly Gleason.

COMMONWEALTH OF KENTUCKY
43RD JUDICIAL CIRCUIT
BARREN CIRCUIT COURT
INDICTMENT NO. 97-CR-000180

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

Motion to Declare Unconstitutional
KRS 504.120(4), KRS 504.130, KRS 504.140,
and KRS 504.150
(Guilty But Mentally Ill Statutes)

STACY DEAN MEADOWS DEFENDANT

**************************

Comes the defendant, Stacy Dean Meadows, by and through counsel, and respectfully moves this Court for an order declaring that KRS 504.120(4), KRS 504.130, KRS 504.140, KRS 504.150 (Kentucky's "guilty but mentally ill" statutes) are unconstitutional because the Commonwealth has ruled and will continue to fail to provide treatment for those criminal defendants found guilty but mentally ill and because the guilty but mentally ill (hereinafter "GBMI") statutes are acting solely as a nullifier to the not guilty by reason of insanity (hereinafter "NGRI") verdict which is authorized by law and is firmly established and integral part of Kentucky criminal law.1 Defendant asserts that application of the GBMI statutes in this case will violate Mr. Meadows' rights to due process, a fair trial, to present a defense, and to freedom from cruel and unusual punishment as protected by Sections 1, 2, 3, 7, 11, 17 and 26 of the Kentucky Constitution and Amendments 5, 6, 8, and 14 of the U.S. Constitution. As grounds for this motion, the defendant asserts the following:

1. Stacy Meadows stands accused of murder, kidnapping, and burglary in the death of Bonita Jo Young. Previous counsel has filed a notice of intent to introduce evidence of mental illness or defect at the trial. Current counsel intend to present an insanity defense at the trial of this matter. Mr. Meadows was evaluated at the Kentucky Correctional Psychiatric Center (KCPC) by Dr. Candace Walker and found to be not criminally responsible for his actions during the time of the alleged offenses due to his mental condition of chronic paranoid schizophrenia with acute exacerbation. Mr. Meadows was also evaluated by Dr. James Hallman from the Green River Comprehensive Care Center who diagnosed him with a psychotic condition which would render him not criminally responsible if malingering was ruled out.2 Mr. Meadows was under psychiatric care at the time of the crimes charged in the Indictment and in fact had been to his doctor, Dr. Kinnaman, the day before. 2. Despite the Commonwealth's knowledge of the defendant's mental status, the prosecutor has chosen to seek the death penalty in this case. Thus, the disposition of the charges takes on greater significance because of the heightened sentencing potential and the conduct of this case will receive great scrutiny if a death penalty is imposed upon this ill man.

3. In most cases where insanity of the defendant is raised, the guilty but mentally ill statutes, enacted and effective in July 1982 as a reaction to the Hinkley acquittal, are applied at the request of the Commonwealth or the defendant. Pursuant to KRS 504.130 a defendant may be found guilty but mentally ill if the prosecution proves beyond a reasonable doubt that the defendant is guilty and the defendant proves by a preponderance that he was mentally ill at the time of the offense. Although the statute seems to read that GBMI is a type of affirmative defense which a defendant may choose to raise, in reality, GBMI is most often used by prosecutors to ensure a conviction and a sentence equivalent to one given to a defendant who does not suffer mental illness.

4. The Commonwealth has stated in its "Response to Motion to Exclude Death Penalty as a Sentencing Option for this Mentally Ill Defendant" that the Commonwealth does not believe the defendant to be mentally ill as that term is defined in the statutes." This is ridiculous given the information available to the Commonwealth and the evidence at trial will demonstrate that Mr. Meadows is both mentally ill now and at the time of the charges and was insane at the time. Because of the similarities between the mental illness and criminal responsibility statutes3 and the nature of Meadows' illness and insanity, the GBMI statutes will be applicable in this case. However, the current operation of the statutes is contrary to due process and to the right of a fair trial because GBMI convicted defendants are not receiving treatment and the statutes are operating solely to serve as a nullifier for the NGRI verdict.

5. The Kentucky Supreme Court has recognized this problem recently. See Brown v. Commonwealth, 934 S.W.2d 242, 245 (Ky. 1996):

We are indeed gravely troubled by a method of punishment which appears to be nothing more than a charade, cloaked in a verdict, GBMI, which amounts to nothing more than an oxymoronic term of art.

Despite being troubled the Supreme Court refused to rule on the merits due to the lack of appropriate evidence: Unfortunately, however, this is not the case to determine either the constitutionality of the GBMI statute or the effectiveness of its provisions, as the record in this matter is essentially devoid of any evidence with which to consider such issues. Id.

The Court noted that Brown offered newspaper articles alone in support of the allegations regarding GBMI and that he "could have strengthened his case with more relevant and credible references, especially with regard to the issue of treatment." Id.

6. The defendant requests a hearing on this motion at which counsel for the defendant will be able to present testimony regarding the current treatment policy within the Kentucky Corrections Cabinet for those people convicted of crimes who have been found guilty but mentally ill. Further, defense counsel wish to present information about the impact of GBMI on the return of NGRI verdicts.

7. Defense counsel would direct the Court's attention to several scholarly works dealing with the GBMI verdict that were cited in the appellant's brief in Brown v. Commonwealth, supra. In 1986, two researchers used mock jurors to "provide data for use in determining the constitutionality of the GBMI statute." Savitsky, J., and Lindblom, W., "The Impact of the Guilty but Mentally Ill Verdict on Juror Decisions: An Empirical Analysis," Journal of Applied Social Psychology, 686-701, 686 (1986). The study used 145 undergraduates as jurors and concludes that "most criticisms of the GBMI verdict rest on the notion that the availability of this alternative will serve as a de facto veto of the insanity plea. Indeed, the current study does indicate that when the GBMI verdict was available there were few NGRI verdicts." Id. at 699. The data from the study also demonstrated that, "The availability of tho GBMI verdict may well encourage jurors to convict innocent defendants on the basis of irrelevant mental health concerns." Id. at 699.

8. Another study cited in the Brown appellate brief was conducted in 1987 for the purpose of examining "whether individuals are less likely to reach judgments of insanity when given the GBMI option." Roberts, C., Golding, S., and Fincham, F., "Implicit Theories of Criminal Responsibility -- Decision Making and the Insanity Defense," Law and Human Behavior, Vol. II, No. 3, 207-232, 211 (1987). The study involved 181 undergraduate stu dents responding to vignettes portraying an act by a mentally disordered defendant

[T]he GBMI option had a twofold effect. First, the GBMI option reduced markedly the proportion of schizophrenic defendants found NGRI [Not Guilty by Reason of Insanity] (Schiz I went from 60% NGRI to 29.5% and Schiz II went from 77% NGRI to 27%). Thus, even those defendants who had been adjudged almost unanimously (and, we would argue appropriately) to the NGRI were now found GBMI... Id. at 222.

 
The study concluded that "Most lay persons would prefer to utilize a GBMI option as a compromise verdict even in the most obvious cases of 'real' insanity." Id. at 226.

9. A study published in 1991 used data from a sample of undergraduates and from a community sample selected from the phone book. Roberts, C. and Golding, S., "The Social Construction of Criminal Responsibility and Insanity," Law and Human Behavior, Vol. 15, No. 4, 349-375 (1991) and concluded as follows:

These data demonstrate clearly that the GBMI judicial instructions and verdict option significantly reduce rates of lay persons' individual predeliberation NGRI verdicts in vignette cases involving floridly psychotic defendants whose delusions are closely related to the nature of their criminal acts. Id. at 368.

10. Counsel for the defendant are unaware of whether studies in Kentucky have been done to determine the effect of the GBMI verdict since its effective date of July 15, 1982. Counsel Gleason contacted the Administrative Office of the Courts and spoke with Acting Manager of Research and Statistics Bonnie Embry to determine whether data regarding NGRI dispositions prior to and after 1982 were available. Counsel was told that no disposition code for that result was available to Ms. Embry's knowledge although there is a code for incompetent to stand trial. Ms. Embry stated there was no program available to her knowledge to retrieve the data and that if one existed it probably would not determine NGRI results since there is no disposition code for that result. Thus, "not guilty" dispositions could be obtained but the reason would be unknown.

11. There is anecdotal evidence of the impact of GBMI on NGRI acquittals available. In the five years (1991-1996) that undersigned counsel Gleason was a member of the capital trial unit and monitored capital cases from around the state, there was only one NGRI acquittals in the state in a murder case to Gleason's knowledge. This was the case of Valerie Wallace, a battered woman tried in Jefferson County for the murder of her spouse. The Commonwealth sought the death penalty. After the NGRI acquittal, Ms. Wallace was found to not be a danger to herself or others and was released. In the time period prior to that, there was an NGRI acquittal in Northern Kentucky in the murder case of Commonwealth v. Jackie Dunn handled by Robert Carran and Phil Taliaferro.

12. On the other hand, there were several murder cases in which a defendant was tried for murder, presented evidence of insanity, and was found guilty but mentally ill. These cases include Commonwealth v. Jonathan Port in Warren County in which Port received life without parole for 25 years; Commonwealth v. Bobby Chester Brown in Jefferson County in which Brown received 48 years; and Commonwealth v. Scott Pennington, from Carter County originally but tried in another venue, in which Pennington received life without parole for 25 years. This last case was a death penalty case. In the case of Commonwealth v. Clawvern Jacobs tried in Warren County in 1996, neither GBMI nor insanity instructions were given despite the defendant's mental illness.

13. Thus, anecdotal evidence suggests that the research performed elsewhere would be applicable to the impact of GBMI in Kentucky. Regardless of the effect of the GBMI verdict on the NGRI verdict, it is clear that the GBMI statutes are unconstitutional if the promise of treatment is not met. It appears that the state of the Correctional system in Kentucky is such that treatment is not being given. Counsel request the opportunity to present evidence.
 
 

Footnotes

1Although insanity in Kentucky is an "affirmative defense" which must be proven by the defendant, due process requires the state to prove every element of a crime beyond a reasonable doubt in order to support a conviction. KRS 507.020 requires criminal intent to commit murder. The Commonwealth should be required to prove criminal intent in order to justify a conviction, and cannot do so in the case of a person who is insane at the time of the offense. Thus the right to present an insanity defense where applicable rises to the level of a constitutional right under Sections 2, 7, and 11 and Amendments 5, 6 and 14.

2Malingering was ruled out after a careful, lengthy evaluation at KCPC. In addition, Mr. Meadows psychiatric history, including an admission at the Medical Center at Bowling Green one year before the alleged crimes, indicates that this mental condition was present and persistent prior to any criminal activity.

3See KRS 504.020 providing that a person is not criminally responsible if "at the time of such conduct, as a result of mental illness or retardation, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law"; KRS 504.060 (5) (Insanity defined as stated above); KRS 504.060(6) (Mental illness defined as "substantially impaired capacity to use selfcontrol, judgment, or discretion in the conduct of one's affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms can be related to physiological, psychological or social factors.")

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