Johnson ex rel. Johnson v. Brelje

HARLINGTON WOOD, Jr., Circuit Judge,

dissenting in part.

The majority affirms the district court in holding that the DMHDD practice of assigning all male USTs to Chester, a maximum security mental health facility, violates the plaintiff’s procedural due process rights under the Constitution. A state-created liberty interest entitled to the protection of the federal due process clause is found in the Illinois Mental Health Code. Therefore, it is held that a UST before assignment to Chester must, within the Mental Health Department, be given separate notice, hearing, and a decision based on the evidence. As I read the Illinois Crimi *1213 nal Code, I see no need for our federal concern and intervention.

Presenting my different view of the Illinois law requires at least a general look at certain comprehensive sections of the Criminal Code. The Code provides that a defendant’s fitness may be raised at any time by the court, state, or defendant. The court then, in its discretion, and at the defendant’s request, may appoint an expert to examine the defendant and make a detailed report to the court. 1 If the issue of fitness involves the defendant’s mental condition, there are further provisions. The court is directed to order an examination of the defendant by one or more licensed physicians, clinical psychologists, or psychiatrists chosen by the court. 2 An indigent defendant may, in addition, have an expert of his choice appointed by the court. 3 If the report indicates the defendant is not fit to stand trial, the report may include “a general description of the type of treatment needed and of the least physically restrictive form of treatment therapeutically appropriate.” 4 The degree of possible restriction thus becomes a statutory concern of the court early in the proceedings. A fitness hearing follows, 5 with either a judge or jury acting as factfinder. 6 Once it is determined that the defendant is unfit to stand trial, the critical issue then becomes whether there is substantial probability that the defendant, if provided treatment, will become fit within one year. The resolution of that issue determines other procedures which are to follow.

If the factfinder concludes that the UST, despite treatment, will probably not attain fitness within a year, the Criminal Code provides several routes which the ease may take. The defendant or the state may request a separate discharge hearing, 7 or the state may elect to request the court to release the defendant from custody, and dismiss the charges against him with prejudice. The state may alternatively request the court to remand the defendant to the custody of the Mental Health Department and order a hearing in accordance with the Mental Health Code. The court may then dismiss the criminal charges without prejudice to reinstatement. The defendant, under this alternative, thereby becomes a former defendant and the statute provides that the “patient” thereafter shall be treated like any other civilly committed patient for all purposes, including selection of place of treatment. The Mental Health Code then takes over and provides that if there is an objection to a transfer between Department of Mental Health facilities, there shall be a hearing before a “utilization review committee.” If the proposed transfer is to a facility which is “substantially more physically restrictive than the transferring facility,” the committee decides if the transfer is necessary for the safety of the patient or others. Notice is provided with the burden of proof placed upon the Mental Health Department. 8 I can envision no more due process than the Illinois Statute already gives USTs in this category with an unlikely prognosis, and therefore see no need for this court to be imposing federal constitutional principles.

A different set of procedures apply, however, if the factfinder at the fitness hearing determines that a defendant is unfit and either it cannot be determined whether a substantial probability exists that the defendant will attain fitness in one year, or it is determined that there is a substantial probability of achieving fitness in one year. Following either finding, the court shall order the defendant to undergo treatment. 9 This is an appealable order. In directing treatment, the court is given wide discre *1214 tion. If the defendant is eligible to be or has been released on bail, the court shall select the least physically restrictive form of therapeutically appropriate treatment. The court may also order the defendant placed for treatment with the Mental Health Department, or any other appropriate public or private mental health facility agreeing to provide treatment. Treatment may be either on an in-patient or out-patient basis. This is followed by a requirement that the person supervising the defendant’s treatment file a report “assessing the facility’s or program’s capacity to provide appropriate treatment” and assessing the likelihood of the defendant attaining fitness within one year. If fitness is foreseeable, the supervisor must file a treatment plan with the court. Interim progress reports to the court are also required. 10 Within ninety days of ordering treatment, the court must conduct a hearing to assess the defendant’s progress. If the court is not satisfied with the defendant’s progress, the court may continue or modify the original treatment order. The court has and continues to have broad control and discretion.

This category of USTs may also demand a discharge hearing before the court. 11 Evidence may be introduced at the hearing relevant to defendant’s guilt. Unless the discharge hearing 12 results in a judgment of acquittal, the court may remand the defendant for further treatment, and extend the one-year time limit, the duration depending on the crime charged. At the expiration of the court-extended treatment period, provided the defendant is still not fit to stand trial, the court has several options. One option is to commit the defendant to the Mental Health Department for a hearing under the Mental Health Code. In that event, the criminal charges are dismissed without prejudice to later reinstatement. This former defendant, now only a patient, is specifically to be treated as any other civilly committed patient. The court may, under another option, remand the defendant to the Department of Mental Health for further treatment if the defendant can be reasonably expected to inflict serious physical harm upon himself or others. This remand period shall not exceed the maximum criminal sentence the defendant might have received upon conviction. There is no provision under this option giving the Department of Mental Health power to select the place of treatment.

A distinction is made in the Criminal Code between defendants who remain defendants and defendants who are transformed into patients to be treated as any other civilly committed patients by Mental Health. Based on that distinction the court maintains full control over “defendants,” but for “patients” substantial control is given to Mental Health. That distinction does not appear to be clearly irrational.

In my judgment, these criminal code provisions relating to that category of USTs remanded to Mental Health not as “patients,” but as defendants, places full responsibility with the court to determine and monitor treatment with the aid of various experts and supervisors. The “least restrictive” guideline is mentioned several times in the Criminal Code. The court may order care on an out-patient or in-patient basis. Periodic progress reports are required, as are hearings on the defendant’s progress with full power in the court to modify its orders as to facility or program. 13 I find nothing in the Mental Health Code that suggests that it is the Mental Health Department that makes those decisions for defendants, but in any event in case of conflict, the Criminal Code prevails. 14

I believe the Criminal Code and the Mental Health Code in concert provide full due process for all categories of USTs. I see no need to impose another hearing in Mental Health for all USTs before “a decisionmaker who is a professional in mental health *1215 cases,” as required by the majority opinion. That creates an unnecessary potential for conflict over resolution of some of the same or overlapping issues between a court and a professional mental health hearing officer. I would ordinarily expect more “due process” for USTs from a supervising judge than from a professional in mental health. Considering the long statutory process of examinations, reports, and hearings already provided, I see no need for us to add yet another hearing in the name of federal due process. Another hearing in this long process might itself be enough to. render even a fit person unfit. I believe Illinois courts have all the statutory authority they need, if they choose to exercise it, to fully and constitutionally look out for the welfare and treatment of USTs in the least restrictive therapeutically appropriate environment. The statutory scheme may not be as clear as it might be, but it is clear enough for me not to join in imposing an unnecessary federal remedy on the state process.

The telephone use policy at Chester is restrictive, but not so restrictive as to be beyond institutional discretion and unconstitutional. Although I disagree with the majority on this issue as a matter of law, I also believe the new policy fashioned by the parties themselves, mentioned by the majority in footnote 8, is a preferable and reasonable policy.

My only other point of difference with the majority concerns the court’s finding that the limitations on outdoor exercise periods at Chester are also unconstitutional. I agree with the state that there are conflicting material fact issues. The district court should consider the totality of the recreational programs at Chester, not base its judgment on one aspect only of recreation. That renders the issue unsuitable for disposition by summary judgment. I would reverse and remand that issue for trial.

To this extent, I respectfully dissent.

. Ill.Rev.Stat. ch. 38, §§ 104-11(a) and (b).

. Ill.Rev.Stat. ch. 38, § 104-13(a).

. Ill.Rev.Stat. ch. 38, § 104-13(e).

. Ill.Rev.Stat. ch. 38, § 104-15(b).

. Ill.Rev.Stat. ch. 38, § 104-16.

. Ill.Rev.Stat. ch. 38, § 104-12.

. Ill.Rev.Stat. ch. 38, § 104-25.

. Ill.Rev.Stat. ch. 91'A, § 3-910.

. Ill.Rev.Stat. ch. 38, § 104-17.

. Ill.Rev.Stat. ch. 38, § 104-18.

. Ill.Rev.Stat. ch. 38, § 104-23(a).

. Ill.Rev.Stat. ch. 38, § 104-25.

. Ill.Rev.Stat. ch. 38, § 104-20(d).

. Ill.Rev.Stat. ch. 38, § 104-29.