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Conditional release holds mentally ill in state's care

A bill in the Senate would automatically free people from the program after a year

By Rob Perez

LAST UPDATED: 11:31 p.m. HST, Mar 14, 2011


» About 450 people acquitted of criminal charges by reason of insanity are in Hawaii's conditional release program, including those acquitted of felonies. In an earlier version of this story, the graphic below referred to the felony cases as convictions.


Dozens of people acquitted of minor criminal offenses because of mental illness have remained under the state's supervision for years, resulting in what experts say is wasteful spending of potentially hundreds of thousands of dollars annually at a time of severe budget cuts.

By the numbers

Defendants acquitted of misdemeanors because of mental illness eventually can be conditionally released by the court:


Misdemeanor offenders currently in the conditional release program


State cost per case

5 years

Average tenure of a defendant in the misdemeanor program

1 year

Maximum misdemeanor sentence

450 Conditional release population, including those acquitted of felonies

Proponents of reforming the program say the majority of the roughly 150 misdemeanor and petty misdemeanor offenders in the program remain under state oversight -- similar to probation -- for longer than they need to be and well beyond the maximum sentence they could have received had they been convicted.

The prolonged oversight, they add, unfairly deprives people of civil liberties and contributes to an overburdened judicial and mental health system.

One man who was acquitted of stealing a bicycle 22 years ago, for instance, still gets thousands of dollars in mandated services annually, including supervision by a probation officer, case manager, psychiatrist and a forensic coordinator or psychologist. Another person who damaged a door with an ashtray but was acquitted of criminal property damage 12 years ago likewise remains in the system, receiving similar services.

Cases like these raise questions, even among state officials, about the efficient use of taxpayer dollars. Hawaii's misdemeanor offenders on average spend about five years in the so-called conditional release program, costing the state roughly $400,000 a case or millions annually, according to state data and officials. The average tenure is five times longer than the maximum one-year sentence for a misdemeanor crime.

"I guess you guys are swimming in money, because in California we couldn't afford that," said David Meyer, clinical professor at the University of Southern California's Institute of Psychiatry, Law and the Behavioral Sciences. "It's costing Hawaii taxpayers a ton for something that's really unnecessary. That's nuts."

What's more, Meyer said, a similar practice in California was ruled unconstitutional in the late 1970s, and most other states likewise don't have indefinite conditional releases for misdemeanor offenders. "You're pretty far behind the curve," he added.

People who are acquitted of criminal charges by reason of insanity in Hawaii usually are committed to Hawaii State Hospital. They typically are considered a danger to themselves or others. If the person's medical condition improves sufficiently, the court can authorize his or her release as long as certain conditions, such as getting regular mental health treatment and having a place to live, are met. In a small number of cases, a judge will place someone on conditional release straight from court, without the defendant spending any time in the hospital.

People on conditional release are subject to random searches and drug testing and must get court permission to travel outside the state. They also can't possess a firearm.

A judge can discharge someone from the program, ending court oversight, if evidence is produced showing the offender is no longer affected by mental illness or can be discharged without being a danger to himself or others, according to Hawaii law.

To save money and fix what state officials, mental health advocates and defense attorneys believe is a flawed system, the Abercrombie administration has introduced a bill, still alive at the Legislature, that would set a one-year limit for misdemeanor offenders on conditional release. After a year the person would be automatically discharged.

Currently, Hawaii law specifies no time limit for felony or misdemeanor offenders, helping explain why the state has more people per capita on conditional release -- about 1 in every 2,700 residents -- than any other state in the country.

Department of Health interim Director Loretta Fuddy told the Legislature in written testimony that most states with conditional release programs limit them to felony offenders or set time caps. She said the one-year automatic discharge would save the state roughly $350,000 per misdemeanor case.

Proponents also argue that the change would enable more resources to go toward felony cases and make the system fairer.

"It's just not right that somebody with mental illness spends more time under the thumb of the court than someone who has no mental illness and commits the same offense," said Neil Gowensmith, forensics director for the Health Department's Adult Mental Health Division, which oversees treatment for the conditional release population.

The automatic-discharge bill, HB 1070, passed the House last week and is now before the Senate.

Prosecutors generally oppose automatic discharges, saying each case must be evaluated on its own merits to determine whether the person is still a danger to himself or others. They note that the underlying misdemeanor charge might not necessarily reflect the severity of the actual offense and that experts can disagree on whether someone continues to be afflicted by mental illness, justifying a case-by-case review.

"Our perspective always is to preserve public safety," said Honolulu Prosecutor Keith Kaneshiro.

Those who commit minor offenses but remain on conditional release for years generally do so because their cases tend to get mired in what Health Department officials describe as bureaucratic inertia.

Hawaii's conditional release law doesn't distinguish between felonies and misdemeanors, though the system is geared more toward dealing with serious offenders, Gowensmith said.

Consequently, the more serious or problematic cases tend to get more attention, especially in tight budget times, leaving many misdemeanor offenders with no one aggressively seeking their discharge, officials say. A discharge petition can be filed only by the offender or the health director. The stigma associated with mental illness also can play a factor.

Some people are kept on conditional release partly because of concern -- mostly unjustified -- that they might commit more crimes if discharged, defense attorneys and mental health advocates say.

"Everybody's going to try to do the safest thing," said William Bagasol, a deputy public defender whose office supports the pending legislation.

Bagasol, Gowensmith and other proponents note that statistics belie concerns about undue risk to public safety. Nearly 90 percent of people on conditional release never return to the State Hospital, and less than one-half of 1 percent are rearrested over a serious felony, a lower rate than the general U.S. population, according to health officials. People discharged from the program have a rearrest rate of only 4 percent, and the majority of those arrests stem from minor charges, the officials said.

While the risk to the community might go up slightly with some discharges, keeping misdemeanants on conditional release for years is not the best use of limited taxpayer dollars, Health Department officials said. Some people spend years in the program for such minor offenses as trespassing, illegal camping or contempt of court.

"We as a group don't think the expenditure of public resources (for prolonged cases) is justified by the facts," said Dr. Bill Sheehan, the Health Department's medical director.

Bud Bowles, executive director of United Self-Help, a nonprofit agency that helps people with mental illness, agreed. "It's ridiculous to tie up money like that," he said. "We can be spending those funds on helping people who really need it."

Former Schofield Barracks soldier Emanuel Capshaw, 24, a Purple Heart recipient and war veteran, likewise questions how resources are spent on the program.

Because of post-traumatic stress disorder and other ailments related to his war deployments to Iraq and Afghanistan, Capshaw was acquitted by reason of insanity on two misdemeanor charges nearly two years ago in a domestic abuse case.

After returning to Hawaii following a suicide attempt during his third war deployment, Capshaw was accused of assaulting his then-wife. Three court-appointed mental health experts concluded the Army man was not responsible for his actions due to his mental condition, court records show.

Capshaw, who is disabled because of his PTSD and a traumatic brain injury suffered in Afghanistan, has been on conditional release since 2009, living at his family home in Indiana.

His attorney, Earle Partington, said Honolulu prosecutors have stated during several court appearances that they intend to oppose Capshaw's pending request to be discharged -- even though Capshaw is doing everything the court has required.

"The abuse this Purple Heart veteran is suffering now is outrageous," Partington said.

"I'm pretty disappointed," Capshaw said. "This has been going on for two years now."

Kaneshiro declined to discuss the case, saying it should be debated in court, not in the newspaper. But he said Partington's description of prosecutors' actions was inaccurate.

While Kaneshiro's office opposes HB 1070 in its current form, he said he would support the bill if it is amended to replace automatic discharges with automatic court reviews, which would be triggered at the one-year mark. A hearing would be held to determine whether discharge was appropriate.

Sheehan said automatic reviews would be an improvement over the existing system but that automatic discharges would be more effective.

Some advocates, such as Marya Grambs of Mental Health America of Hawaii, support automatic discharges but question whether those needing treatment would still be able to get it after being discharged. "We just don't have an adequate mental health system," she said.

Gowensmith said the majority of discharged people continue to receive treatment, albeit voluntarily. If someone is considered dangerous, the state has the option in civil court of seeking an involuntary commitment to the State Hospital.

Of the roughly 150 misdemeanor offenders on conditional release, more than 90 percent have been on it for more than a year, including Olivia M. Lee, 28, who was arrested after she pulled a fire alarm in an office building for no valid reason. She said voices inside her head told her to pull the alarm.

Even though Lee has been in the program for longer than the maximum sentence for a misdemeanor, she has no complaints. Once homeless and a former drug addict, Lee said the program has helped her turn her life around.

She's hoping to be discharged later this year. "But it wouldn't bother me if that doesn't happen," Lee said.

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