By Michael P. May, Esq. & Senior Judge Louis A. Becker

Attempting to make sense of, much less developing a consistent approach to, dealing with mentally ill persons caught up in the criminal justice apparatus at times can amount to the functional equivalent of trying to catch smoke in a butterfly net. The best efforts of highly capable and competent medical and legal professionals, jurists and legislators have perhaps produced some optimism. Often, though, they can generate considerable confusion.

The prevalence of illicit and illegal drugs has horribly and alarmingly exacerbated the problem. Naturally, substance abuse professionals approach these issues from different perspectives than mental health professionals, as do lawyers and jurists, from those addiction and mental health specialties. That divergence of approaches often produces conflicts as to whether mental health professionals, primarily providing psychiatric treatment for co-occurring disorders, or substance abuse professionals, who focus on screening, behavioral monitoring, and counseling, should prevail in individual cases. In addition, the subject defendant is suffering from a mental health condition and/or from addictions. He or she may not understand that or be willing to comply with court ordered mental health or substance abuse evaluation or treatment. That can also produce confusion and conflicts with judicial and legal professionals in sentencing and/or recommendations for and monitoring of probation conditions. As that drama plays out continuously in courtrooms throughout the State, it affects findings of criminal guilt and criminal responsibility and terms of sentencing or release respectively. The need for incarceration, as opposed to hospitalization — or appropriate inpatient or out-patient treatment, comes into play. Judges and lawyers must also consider appropriate conditions for probation and/or release back into the community, from the standpoint of the law, i.e., aspects of protecting public safety, appropriate aspects of punishment for criminal acts, monitoring to alleviate recidivism, after a criminal conviction, or a commitment for dangerousness after a defendant is found Not Criminally Responsible. Health Care providers doing evaluations for sentencing and probation recommendations and/or involved in monitoring conditions of probation obviously are concerned with the clinical aspects from the medical standpoint. Thus, no easy answer exists; nor does an effective universal approach.

Throughout Maryland, particularly in Baltimore with its high crime areas teeming with constant violence, many residents bear the horrific emotional scars that exposure to it inevitably produces. Often traumatized persons react by engaging in criminal behavior. Many jurisdictions have started problem-solving courts like Drug/DUI, Mental Health and Veterans Courts to address those issues in order to overcome some of the procedural and legal/medical hurdles associated with the relationship of crime to mental illness and addiction.

Like many residents of high crime areas, veterans, who willingly ran toward, not away from, threats and dangers to our country also deal with the repercussions of their exposure to violence in our wars. They suffer greatly from Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI) and other conditions affecting their ability to function normally in society. Physical pain and mental anguish are constant companions. They lose friends; they lose family; they lose themselves. Desperate to obtain even a temporary respite from the pain, they often resort to drugs. Eventually, many tragically become criminal defendants.

In Baltimore City, these veterans, who have sacrificed so much, do not become lost in the system. The Veterans Treatment Court, a 5-year-old problem-solving court created and presided over by Judge Hallee Weinstein, herself a veteran, with a committed team, strives mightily, often successfully, to assist the former military to recover and, once again, to become proud assets to the community.

Competency of Criminal Defendants Generally

Normally, criminal cases in which mental health is an issue began in non-problem-solving courts under Title Ill of the Criminal Procedure Article, Annotated Code of Maryland, with a determination of competency, i.e., whether a defendant can understand the nature of the charge or object of the proceeding and/or assist in her his or her defense, the standard set forth in Dusky v. United States, 362 U.S. 402 (1960). Pursuant to Md. Crim. Proc. Code §3-105(b) & (c), if, before or during a trial, the defendant appears to the court to be incompetent, the court makes that determination, which may include ordering the Health Department to examine the person, an examination that could occur on an out-patient basis, could occur in jail or could occur in a hospital. The court may also order confinement for safety reasons.

Md. Crim. Proc. Code §3-105(d)(2) requires a report based on the examination to be submitted to the court within 7 days unless good cause to extend that period exists. Nonetheless, failure of the Health Department to send a complete report within that time is not, of itself, grounds for dismissal of the charges. Following a hearing, if the court commits the defendant to the Health Department on a finding of incompetency, the Department must commit the defendant to a designated health facility, not a correctional facility, within 10 business days. If the Department of Health fails to comply, the Department can then be charged with a sanction to include reimbursing the detention center for detaining the defendant past the designated time periods. The next section of the statute, Md. Crim. Proc. Code §3-106, reads that once a defendant is committed, the court is required to hold a hearing to determine if the defendant continues to meet the criteria for commitment (1) every year, (2) 30 days after anyone makes a motion for a hearing or (3) 30 days after the court receives a report from the Health Department alleging new relevant matters. Id. Indeed, State v. Crawford, 239 Md. App. 84, 95, 196 A.3d l, 6 (2018) reiterates that standard. The law also provides for civil commitments. Unfortunately, for myriad reasons, a lack of resources, e.g., funding for hospital bed spaces, as well as bureaucratic misunderstandings and inattention to legal deadlines results in persons who are mentally ill unnecessarily languishing in prison, instead of receiving needed treatment.

Lack of space engenders issues for courts and healthcare facilities. The law states that if, after a hearing, the court finds that the defendant is incompetent and, because of developmental disability, or a mental disorder is a danger to himself or herself or to the person or property of another, the court must order the defendant committed until he or she is no longer incompetent, is no longer dangerous or there is not a substantial likelihood that he or she will be restored to competence. Md. Crim. Proc. Code §3-106(c)(l)(i). For the developmentally disabled, the Health Department must require the Developmental Disabilities Administration, part of the State Department of Health and Mental Hygiene, to provide the care or treatment the defendant needs, a genuine conundrum in that there are few facilities to provide such care in these days of deinstitutionalization. The Health Department must admit a committed person to a health care facility as soon as possible, but not later than 10 days after the Department receives the order of commitment. There are also exacting and challenging requirements with respect to evaluation and treatment plans, particularly when, as indicated above, the Court may impose sanctions reasonably designed to compel compliance, including requiring the Health Department to reimburse a detention facility for expenses and costs incurred in detaining a defendant who should be committed. Md. Crim. Proc. Code §3-106(c).

Criminal Defendants Not Criminally Responsible Generally

The test for Not Criminally Responsible, which used to be called Not Guilty by Reason of Insanity, is an inability or lack of substantial capacity to appreciate the criminality of one’s conduct or to conform that conduct to the requirements of the law as a result of a mental illness or defect. Md. Crim. Proc. Code §3-109. Only a defendant can enter a plea of Not Criminally Responsible (NCR), which must be done in writing. Md. Crim. Proc. Code §3-110(a)(2). The defendant also has a choice of whether to bifurcate the trial into a guilt phase and then an NCR phase or whether to have the two tried together. The NCR issue, not surprisingly, involves a battle of expert witnesses. If the case has been divided into a guilt phase and then an NCR phase, once the defendant is found guilty of a crime, the second phase, as is now occurring in the pending Capital Gazette murders in Annapolis at the time of this writing, addresses criminal responsibility. The defendant has the burden of proof, by a preponderance of the evidence, of showing that he or she is not criminally responsible. Md. Crim. Proc. Code §3-110(b). It is however a daunting task, and often people who are clearly mentally ill are not sick enough to meet the test. Thus they go to prisons, which have become, at least according to some, as is also the case with jails, our country’s largest insane asylums.

If the defendant is found guilty of a crime but then NCR by reason of a mental disorder or illness, he or she is committed to the Department of Health, generally Clifton T. Perkins Hospital, for an evaluation to be done within 90 days and for inpatient treatment. Md. Crim. Proc. Code §3-112. The hospital’s evaluating psychiatrists issue a report and recommendations which are presented to an Administrative Law Judge (ALJ) in a proceeding before the Office of Administrative Hearings (OAH). The ALJ issues a report and recommendations which are then referred to the Circuit Court for judicial review. The defendant remains in custody until he or she is deemed to be no longer a danger to himself for herself or to the person or property of another. The court may affirm the ALJ’s recommendations, may deny the defendant release, may remand the matter back to OAH for further proceedings or may order the defendant released with or without conditions, temporarily or permanently, but only after finding that the person would no longer be a danger to himself or herself or to others. Id.

The State’s Attorney and lawyers for the hospital and the defendant/patient normally participate in release proceedings, especially as to any conditions the court might impose. Normally, rigorous reporting and release requirements exist and are imposed and followed. There are also provisions for notification of victims.

Defective Delinquents & Mentally Ill Defendants Who Don’t Meet The Test

Between 1951 and 1977, because the law permitted mentally ill or challenged persons, including some people, theoretically at least, genetically disposed toward criminal activity, to be held criminally responsible and that they did not meet NCR criteria, Patuxent Institution had a program for defective delinquents. The State could continue to hold “defective delinquents” beyond the expiration of their sentences until a team of psychiatrists decided it was safe to release a person. Article 31B §55 said, “A defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either intellectual deficiency or emotional imbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, may make it reasonably safe for society to terminate the confinement and treatment.” Id.

The matter of holding persons beyond the ends of their sentences because of defective delinquency reached the United States Supreme Court in McNeil v. Patuxent Institution, 407 U.S. 245 (1972) after a burglar serving a 5-year sentence refused to undergo an examination to ascertain if he was a defective delinquent. After his sentence expired, the State continued to hold him. The Supreme Court confined its decision to the facts of the case, not reaching the larger Constitutional issue, by stating that under the circumstances presented, holding the petitioner on the basis of an ex parte order committing him to observation without the procedural safeguards commensurate with a long-term commitment was improper. See also Burton v. State, 38 Md. App. 391, 338 A.2d 421 (1975).

In 1977, the Maryland General Assembly repealed Article 31B. These days convicted mentally ill, but not NCR, criminals still receive some form of treatment at Patuxent. In addition, the institution provides a well-respected Youthful Offenders Program for certain non-mentally ill criminals, although some of them have serious behavioral disorders, nonetheless. In addition, the Department of Corrections maintains Special Needs Units in various institutions. The professionals do their very best, but as a practical matter, they have too many patients and too little money and resources for effective treatment. As a result, the mentally ill, often prone to violence, addictive behavior or both, eventually return to society without adequate treatment or proper conditions of release.

Civil Implications of Mental Illness

In the civil arena, on July 12, 2018, the Court of Appeals of Maryland decided Bell & Bon Secours v. Chance, 460 Md. 28, 188 A.3d 920 (2018). Brandon Mackey struggled for years with chronic mental illness. At age 23, he tried to kill himself when he was living with his mother and stepfather by slashing his wrists. An ambulance took him to Harbor Hospital, and he was then referred to Bon Secours Hospital where he was voluntarily admitted. The doctor there diagnosed him with depression and discharged him. Less than 2 weeks later, he again attempted suicide, this time by stabbing himself in the neck. His mother took him to St. Agnes Hospital. From there, he went back to Bon Secours, this time on an involuntary commitment admission. The same doctor treated him, giving him a different diagnosis, paranoid schizophrenia. Two days later before a hearing on the involuntary admission, the doctor released him. The next day, after his mother went to church, he went to a subway station and killed himself by jumping in front of an oncoming train.

His mother sued and obtained a judgment of $2.3 million. The trial court granted the post trial motions of the doctor and hospital and set the verdict aside on the basis of immunity, and the Court of Special Appeals of Maryland reversed the trial court. Then the Court of Appeals of Maryland reversed the intermediate court, stating, “[W]e hold that the immunity statutes related to involuntary admission of an individual to a mental health facility apply throughout the entire process of involuntary admission from the initial application for admission to the mandatory ALJ hearing. If a psychiatrist employed by the facility applies the statutory criteria for involuntary admission in good faith and decides to release an individual prior to the ALJ hearing, the psychiatrist and the facility are immune from civil and criminal liability for that decision.” Id. at 62, 188 A.3d at 949.

The Bell opinion thoroughly explains the involuntary civil commitment process. An individual may not be admitted involuntarily unless he or she (l) has a mental disorder, (2) needs inpatient care or treatment, (3) presents a danger to the life or safety of himself or others, (4) will not or cannot be admitted voluntarily and (5) could not receive a less restrictive form of intervention consistent with the individual’s welfare and safety. Id. at 38, 188 A.3d at 936; COMAR  But, between the initial confinement of an individual and a hearing, the doctor caring for the individual at the facility must authorize release if he or she believes the criteria for involuntary admission are no longer met. Id. at 39, 188 A.3d at 936; COMAR 10.21.0 1.02B (18). That decision is immune from civil liability and may not be the basis of a verdict for medical malpractice. Id. at 40, 188 A.3d at 937; Md. Health Gen. Code §10-618; Md. Cts & Jud. Proc. Code §5-263. see also Williams v. Peninsula Regional Medical Center, 440 Md. 573, 103 A.3d 658 (2014) (immunity applied when a hospital declined to admit a person having suicidal thoughts whose later behavior caused him to be shot and killed by police after he charged them with a knife).

The law also provides that the ALJ must release the individual from the facility unless there is clear and convincing evidence of each of the 5 criteria required for involuntary admission. In addition, even if an ALJ authorizes an involuntary admission, the individual or the Director of the Behavioral Health Administration may apply for a writ of habeas corpus. In fact, a footnote in the Bell case notes that a responsible individual defined as the Director or Administrative Head of the facility housing the person, if he or she finds the patient does not have a mental disorder or does not need inpatient medical care or treatment for the protection of the patient or another, would not endanger himself or another person or property, and the patient or another possible person is willing and able to provide any necessary care, may apply. Bell, supra, at 40, n.6, 188 A.3d at 936, n. 6.

The tragic issues that brought about the Bell and Williams cases have plagued and stumped the medical, legal and judicial communities and legislators throughout the entire country, not just in Maryland, for decades. Notwithstanding the language of Bell and Md. Health Gen. Code §10-617, both of which articulate specific criteria for involuntary admission, no one has a crystal ball. When a person should be committed, whether the person should receive forcible medication, for how long that should occur, when he or she should be released and what conditions should apply to any release are issues that defy a universal solution, especially in a society properly promoting and cherishing personal freedom and autonomy.


Voluntary Intoxication As A Defense To Specific Intent Crimes

The issue of voluntary intoxication also implicates mental health. In State v. Gover, 267 Md. 602, 298 A.2d 378 (1973), the Court of Appeals of Maryland held that while, in general, voluntary intoxication is not a defense and does not excuse or justify criminal conduct, when a defendant stands charged with a crime requiring specific intent, the defendant may not be found guilty if he or she is so intoxicated at the time of the act as to be incapable of forming the necessary intent. Regardless of the severity, voluntary intoxication cannot be a defense to a general intent crime. Thus, as Judge Moylan noted in a footnote to Cirincione v. State, 73 Md. App. 166, 170, n. 1, 540 A.2d 1151, 1153-54, n. 1 (1988), while intoxication may negate specific intent including the specific intent to kill and the specific intent to inflict grievous bodily harm, it may not serve as a defense to second degree depraved heart murder because that variety of crime does not require specific intent.

Of course, if a defendant forms the intent before consuming an inordinate amount of alcohol in order to acquire liquid courage, the degree of intoxication does not operate as a defense. See also Avery v. State, 249 385, 240 A.2d 107 (1967) and Lewis v. State, 79 Md. App. one, 12-13, 555 A.2d 508, 514-15 (1989) (Gover defense was so narrow that the amount of beer, liquor and/or drugs consumed, standing alone, could not establish intoxication absent any evidence of its effect on the defendant). To the same effect is Bazzle v. State, 426 Md. 541, 45 A.3d 166 (2012). In that case, the Gover defense proffered by Bazzle did not dazzle the trial judge, who declined to give a Gover jury instruction because the defendant engaged in behaviors, such as an ability to recognize the gender of his attackers, escaping from them by running, not walking, away, the ability to locate a friend’s house on foot in the dark while severely injured and the ability to speak intelligibly, all inconsistent with extreme intoxication. Under the circumstances, a blood alcohol level is high as .157 may have shown intoxication but certainly not a level of intoxication that would have negated his ability to form specific intent. The Court therefore held that “Petitioner failed to generate an instruction on voluntary intoxication because the evidence was insufficient to permit a jury to rationally conclude that his intoxication made him incapable of forming the intent necessary to constitute his crimes.” Id. at 101. at 563, 45 A.3d at 159.


The Baltimore City Veterans Treatment Court, and problem-solving courts like it, do their utmost to alleviate some of the messiness and confusion caused when the complicated interface of issues between the law and mental health and addiction issues arises. They and the community support they engender help keep our veterans, who sacrificed so much, from plummeting down that slippery slope, to enable them, with hard work, to avoid the Scarlet Letter of a criminal conviction, to restore their pride, their humanity, their dignity. In today’s society, with its complicated intersections of law and medicine, the task may be daunting, even intimidating. Yet, to paraphrase the words of Winston Churchill and the late basketball coach, Jim Valvano, we won’t give up — ever. Problem solving courts like the Baltimore City Veterans Treatment Court are a key to alleviating, maybe even eliminating, some of the complexity and mystery involving medical and legal interactions in court proceedings.

Michael P. May, Esq., Mentor, Baltimore City Veterans Treatment Court, Past Chair Veterans Affairs Military Law Section, MSBA; Past Commanding Officer, Judge Advocate Corps, Maryland Defense Court; Vietnam Veteran; Judge Advocate, National Fourth Infantry Division Association; Juris Doctor, magna cum laude, UB Law, 1980; Managing Editor U. Balt. L.Rev, 1980; Chief Justice Law School Honor Court; Heuisler Honor Society; Law Faculty Award; Retired Detective Sergeant, Baltimore Police Department (Line of Duty Injury).

Hon. Louis A. Becker, Senior Judge, Circuit Court for Howard County; certified to sit throughout the State; Founding Judge, Howard County Dist. Drug/DUI Court; member, Judiciary Problem Court Committee & Workgroups; Adjunct Professor: Professional Responsibility & Trial Advocacy 200514 & Graduate, UB Law, 1970; Past Chair, Veterans Affairs Military Law Section, MSBA.