Excerpted from the Family to Family NAMI Course
By Emalee Gillis, NAMI Spokane Blog Editor.
When people with a mental health condition or their families interact with the criminal justice system, the pressure and intimidation can be overwhelming. This fact sheet (excerpted from the Family to Family NAMI Course) offers basic information to help you navigate the legal system. The next free 8-week NAMI Family to Family Course begins October 16 in Spokane.
What should you know first about criminal law?
In criminal law, the outcome of a case depends as much on the facts of the case and the procedures followed in building it as it does on the actual law. It is, therefore, essential to have a good criminal lawyer to direct you through an encounter with the criminal justice system.
What is the difference between a misdemeanor and a felony?
Criminal violations come in two varieties, misdemeanors and felonies. There is no universal rule among the states to determine what is a misdemeanor and what is a felony. Generally, crimes that are punishable by incarceration of one year or less are misdemeanors, and crimes punishable by incarceration of more than one year are felonies. Beyond the maximum period of incarceration, whether a crimes is a felony or a misdemeanor is significant because it will impact criminal procedures and constitutional rights.
When does an arrest take place?
An arrest occurs when the police take a person into custody in order to charge that person with a crime. To make a lawful arrest, a police officer must believe that the person to be arrested committed a crime. This is important in the context of mental illness because an arrest does not occur every time a person with a mental health condition is picked up or taken into custody by police.
What is booking?
Booking is the process of fingerprinting and photographing a person what has been arrested. In some instances, it may be important for the police to be notified quickly that they have a person with a mental health condition in custody. However, families should be cautioned that the disclosure that a person has a mental illness could make the police view the situation more seriously. Therefore, whenever possible, before family members make disclosures to the authorities concerning the psychiatric history of a family member, they should discuss it with their attorney.
What should the family do during the interrogation?
Family members should try to prevent the police from questioning a family member with a mental health condition without a lawyer present. Any person who is questioned by the police and is not free to end the questioning and leave the place where he or she is being questioned must be given a Miranda warning (the right to remain silent, etc.) The police must immediately stop questioning anyone who asks for a lawyer.
How do you find a lawyer?
Competent criminal lawyers are almost always available, even if you budget is limited. The first place to seek a lawyer if you cannot afford to pay a full fee for a private lawyer is through public defender services, court-appointed attorneys, local criminal defense lawyers’ associations or local bar associations.
The United States Constitution guarantees legal representation to every defendant in a felony criminal case. Therefore, if a defendant to a felony charge cannot afford a lawyer, the state must provide him or her with one.
What are your constitutional rights?
The Fourth Amendment guarantees the right against unreasonable searches and seizures. Usually a warrant is required. The exclusionary rule prevents the prosecution from placing into evidence any evidence that was obtained unreasonable.
The Fifth Amendment guarantees the right against self-incrimination, which is the well-known right to remain silent.
The Sixth Amendment guarantees the right to a speedy trial. Every defendant in a criminal case has a constitutional right to have the charges against him or her decided quickly so that he or she can move on with life. The Sixth Amendment also guarantees the right to a public trial and a jury trial. The right to confront witnesses, a compulsory process for obtaining witnesses, and the right to assistance of counsel are also protected by this amendment.
The Eighth Amendment protects people from cruel and unusual punishment. In addition it protects the right to treatment for acute medical problems, including psychiatric problems.
Who decides to file charges?
The decision to file charges is often made by the police and the prosecutor’s office together.
What is jail diversion?
Jail diversion is a procedure in which a person with a mental health condition who has been charged with a crime agrees to participate in voluntary treatment. This treatment is generally provided in the community. In exchange for participating in treatment, the charges are either dropped or deferred, pending satisfactory compliance with treatment. Jail diversion must be distinguished from probation and a suspended sentence (which are similar), which entail a conviction being entered onto the defendant’s criminal record, either by a guilty plea or by a verdict.
Can a person stand trial if he or she is viewed as incompetent?
No person can be tried or sentenced for a crime if because of a mental disease or defect he or she cannot understand the nature of the proceedings against him or her or assist his or her lawyer in preparing a defense. A criminal found not competent to stand trial is usually subject to civil commitment for an indefinite period.
If a person is found competent to stand trial, can he or she invoke the insanity defense?
Yes. A determination of competency does not prevent a defendant from raising the insanity defense.
What other justice resources may be available for Service Members and civilians dealing with mental illness?
Specialty courts or dockets that address various issues and populations including: Veterans, Mental Health, Drugs/Substance Abuse and SAMI (Substance Addiction and Mental Illness).
Diversionary programs that allow the individual who has been charges with a crime to opt into a special program that will require rigorous mental health and/or addiction treatment in order to avoid serving time. These programs may not be available to those charged with serious crimes.
Reentry programs that provide specialized supervision as individuals with mental health needs transition back into the community following incarceration.
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The Family-to-Family Course from which this article was excerpted discusses ways to help the loved one learn to live well with a mental illness. The free 8-week Course is designed to help individuals support an adult with a mental health condition while maintaining their own well-being.
NAMI Family-to-Family is taught by NAMI-trained family members who have been there and includes presentations, discussions, and interactive exercises. It is a designated evidence-based program, which means that research shows that Family-to-Family significantly improves the coping and problem-solving abilities of the people closest to a person with a mental health condition.
The next 8 week Family-to-Family Course will begin October 16 and will meet Wednesdays from 6:00-8:30pm in Spokane. To register, email Amanda@namispokane.org.
Emalee Gillis is a writer and blog editor. She is the author of the memoir Adventures on the Path to Living Well with a Mental Illness and has a related TEDx Talk.