Traditional Criminal Defense Plus Crime & Treatment

Occasionally, I get to do something with Florida Criminal Law that brings me total joy: filming for one of my video projects.

My mother was an educator so it must come from her. In a little over an hour, I will begin filming the most detailed explanation of Crime & Treatment ever recorded.

As many of you know, this journey actually began in 1991 when I began using Diagnostic Evaluations in a rather nontraditional manner. Back in the day, the only time someone was evaluated was if 1) the lawyer couldn't even hold a rational conversation with someone because they were so mentally ill that they were incompetent, or; 2) the person was in the category often described as "I think I am Jesus."

However, it became apparent to me very early on that many people were sane, but simply unable to make good decisions despite knowing about the damaging life consequences of their behavior. Most of my colleagues, the prosecutors, the courts, probation and others simply dismissed people who repeatedly get into trouble, violate probation, etc. with labels.

"Loser" was a common label, and along with all of the others, there was this complete belief system filled with preachy judgment, and to put it bluntly, cruelty. I cannot tell you the number of times someone would use intensely judgmental language about criminal behavior, yet when questioned about their beliefs and conclusions, this person would sometimes get angry when the logical flaws in their thinking were laid bare.

They not only did not "get it," they didn't want to. They were so invested in believing nonsense, that they could not even conceive that their conclusions and beliefs were not accurate. Thus the educational process began.

Today, society still has quite a few moments where getting it is elusive, but today I get to spend a couple of hours out of my busy day educating people about the key role of brain health when it comes to solving the problem of crime, one person at a time.

Chronic stress, economics, crime and social order

Many of the cases I handle as a criminal defense lawyer in Florida are rooted in chronic stress. Consider:

• a couple has chronic stress related to money, and they fight and argue until a real or fabricated case of domestic violence erupts
• someone making over $20/hour in 2007 goes through a long period of unemployment, and by 2014, is barely employed and making less than half of what they made seven years ago. They begin drinking heavily and ultimately get charged with DUI.
• broke his entire adult life, a desperate twenty-five year old male robs a convenience store.
• a teenager watches his parents lose their jobs, their home, and barely survive on the margins, living minimum wage paycheck to paycheck, desperately poor and with no hope for a better tomorrow. Sinking into depression and anxiety, a gun is taken to school and, you can figure out the rest.

This is America today.

There is a mass homicide such as the shootings at Sandy Hook roughly every two weeks. As awful as such events are, isn't there are part of you that doesn't get surprised by this?

Moralists are quick to prescribe nonsensical quick fixes with one line sentences of pithy rhetoric, usually some form of childish black and white thinking which does little more than display a profound level of ignorance about the human condition.

Reality can be brutal: people without hope are dangerous. When their brains are scanned and the images are compared with healthy, normal range brain images, people who have been under chronic stress have negative changes to both the physical structure and operational parameters of their most important organ in the human body. The organ that controls human behavior. Or not.

When PTSD is factored in, the result can be terrifying. When all forms of mental illness are factored in, as a society, we have to confront uncomfortable truths:

1) The people who are completely insane (what I loosely and unscientifically refer to as the "I think I am Jesus" category) they are not the problem. When someone is babbling nonsense claiming to be the messiah, discerning mental illness requires little skill simply because it is so obvious. And they are not the biggest threat. The ones that fly under the radar and appear to be somewhat normal, yet eccentric are extremely dangerous. Punishment does not deter them. Think of the Boston Bomber suspect who made headlines (again) today with the announcement the government is seeking the death penalty. How well did that threat of punishment work?

2) We are our brotherss (and our sisters') keeper. Unless we embrace and support a total breakdown of social order, mass homicides, bombings, Santa Slayers and a whole host of simply awful social ramifications.

Fortunately, we can solve these seemingly intractable problems with an investment in our people, despite the unpopularity of talking about income inequality and the fact that crime is a medical problem. It has been reported that 400 Americans have a level of wealth equal to the lower 150 million in our country, and worldwide, that 85 people have half of the world's wealth. Quick point: when was the last time you heard about a billionaire losing it and committing a mass homicide? How about a robbery?

You haven't. It doesn't happen.

In America, when half of the country has no realistic way to compete for a bigger slice of the economic pie, and the slice they have is getting smaller, it is easy to foresee that more mental breakdowns will occur.

Along with Greece, Spain, Ukraine and a host of other nations, Britain had a complete mental breakdown due to the chronic stress of economic anxiety in 2011: do we want that to happen here?

Decidedly not. Preachy moralisms are no answer. We either care for our brothers and sisters with our economic, social, criminal, medical, and taxation policies or we live with the consequences of our continuing failure to do so.

Advanced Plea Bargaining in Florida Criminal Cases.

Advanced Plea Bargaining using SPECT (Single Photon Emission Computed Tomography) brain imaging based Diagnostic Evaluations and Treatment plans. This short video explains something I am deeply passionate about: solving the problem of crime.

Treating the problem of crime is far more effective than jail or prison, whether someone has a prior record or is a first offender seeking mitigation of sentence.

Sentencing Orders and Diversion Programs

Not to be snarky, but I think this tidbit from Amen Clinic is dead on the money:

"Psychiatrists are the only medical specialists who rarely look at the organ they treat. Psychiatrists continue to make diagnoses the same way they did 100 years ago, based on clinical exams and symptom clusters. There is a better way. SPECT imaging is a clinically useful way to look at brain function." 18 Ways that SPECT can Help You

We see this in Florida Criminal Law on a regular basis. Uniformed prosecutors, criminal defense lawyers and judges do not understand that the brain is the hardware and mind is the software. Florida Criminal Law has attempted to inch forward into the 21st century with first offender and other diversion programs such as Drug Court, Mental Health Court, and Veteran's Court. Yet these programs - and others - are quite frankly, an intellectual embarrassment. We need a change that is not incremental, but one on an order of magnitude. We need to put the money in the system up front and get the most accurate diagnostic evaluations possible, and that means the use of imaging technologies such as SPECT.

Each of these diversion programs essentially use outdated technology. Sure, they are better than expensive, harsh, incarcerative sentences, yet they usually fail in the long run. Why? They don't look at the organ sought to be treated. 

Florida Criminal Law revolves around discovery - the process of learning about the other side's case in the form of reports, witness lists, depositions, examination of physical evidence and more. Yet when it comes to diversion programs and sentencing orders designed to treat the bodily organ responsible for some of the most dangerous and damaging behaviors which are reasonably foreseeable to recur, we rely on guesswork. This is especially true for Mental Health Court, Veteran's Court, Drug Court and sentencing conditions such as Anger Management and Domestic Violence Intervention Programs. How bad can it get? A war veteran tried and convicted of quadruple homicide when he was making an obvious cry for help for several years. Four innocent people dead, including three children, and the taxpayers literally pay millions of dollars for the sentence imposed. 

For clarity, let me add this disclaimer: Not everyone needs treatment nor a SPECT scan. Yet many do, and guesswork in the place of discovery would often be a ground for a Rule 3.850 Ineffective Assistance of Counsel motion. Yet our laws, rules, procedures, sentencing protocols, treatment diagnostics and basic problem solving skills as lawyers and judges are simply tossed out of the window of common sense.  Our legal test for insanity is from the 1830's. 

Finally, there will be the doubters who question the technology or the approach, and even more who will complain about the cost. Yet these are often the same people calling for more and more prison time without mention of the cost to the taxpayers. Cost is not the excuse, cost is the biggest reason. Inadequately funding diversion programs is foolish, funding them for accurate diagnostics and verifiable treatment results just makes good fiscal sense.

The Smoking Gun

For several years now, I have been asserting that there is a definitive link between mental illness and crime. To recap, repeat offender crime is caused by one of two factors:

1) A small number of repeat offenders have a personality disorder. Think of this as a willful desire to break the law due to bad character.

2) A large number of repeat offenders have mental illnesses that do not qualify for an insanity defense under Florida law, yet affect their behavior and cause criminal behavior.

This second view is very controversial: If criminals are simply “bad characters,” it would justify increasingly harsh punishment. Incarceration would then serve the dual purposes of protection of the public and retribution However, if some criminal are bad characters and others are not, we have a problem: Harsh punishments will not deter the mentally ill, and retribution becomes and act of cruelty.

The Bureau of Justice Statistics Special Report published in September of 2006 exposes the level of cruelty - and ignorance – prevalent in our society. While most of the public thinks that harsher punishment is the solution to the social problem of crime – to “teach them a lesson” and other such nonsense, the reality is that we are behaving like prisoners who hurt others without remorse: Our society is quite bluntly put, cruel.

• 45% of federal prisoners have mental health problems.
• 56% of state prisoners have mental health problems.
• 64% of local jail inmates have mental health problems.

This stunning document was produced by the United States government’s own Bureau of Justice, not some “bleeding heart” group. They used professionally accepted definitions and standards:

“Symptoms of a mental disorder were based on criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV).” - Bureau of Justice Statistics Special Report, page 1, September 2006.

One final thought: The incidence of mental illness was probably understated because many facilities and many inmates refused to participate.

How to Solve the Problem of Crime

Here is a cost neutral way to solve the social problem of crime.

When a criminal defendant is arrested, they are usually held until they see a First Appearance judge within 24 hours of arrest. At First Appearance, the judge will often determine bond issues.

First Appearance is often a criminal defendant’s first contact with the judicial system, their first contact with someone empowered to solve the problem of crime. First Appearance judges can:

1. Learn the patterns of mental illness that fly below the radar. Substance abuse is an obvious red flag. Driving on a suspended license isn’t, but should be.

2. Order a Diagnostic Psychological Evaluation as a condition of bond. Do not order cookie cutter treatment such as Batterer’s Intervention Program, Anger Management, AA or NA. Diagnosis first, treatment second.

3. Impose a condition that the defendant follow through with treatment as recommended while the case is pending. A limited medical release can be required for the purpose of ensuring compliance with this condition of bond.

The key to effective intervention is diagnosis first. The failure to properly diagnose criminal defendants is why Drug Court, Shoplifters anonymous, court ordered AA/NA and Anger Management counseling programs are statistical failures: The wrong treatment is often worse than no treatment at all.

A proper diagnostic evaluation is not a fifteen minute question and answer session with a counselor with a bachelor’s degree. Such a drive through diagnostic session is a waste of the counselor’s and the patient’s time. Yet this is exactly how most court ordered programs operate.

The best practice is one of two methods of diagnosis:

1. Medicine: A SPECT brain scan by a well-trained psychiatrist, such as those at Amen Clinic. However, it is too expensive for a judge to impose it as a condition of bond. As the technology becomes more available, that will change. A full imaging and follow through will cost around $4,000.00.

2. Psychology: A Mental Status Exam coupled with Advanced Psychometric Testing, such as the MMPI-II and the MCM-III. A full battery of tests can be done for about $750.00 – well within the means of most who want to get out of jail.

A diagnostic evaluation and follow through treatment is not with the means of every single criminal defendant. However, it is within the means of most. After all, the courts have been imposing treatment without adequate diagnosis for years.

Just look at well that system has worked.

Respectfully submitted,

Stephen G. Cobb
CobbLawFirm.com