Requesting Mental Health Treatment in Lieu of Prison
by Randall Hodgkinson, Appellate Defender
I recently represented a client convicted of a serious offense, who, from the record, appeared to have a severe mental illness. At sentencing, the trial attorney indicated the client had received a pretrial mental health evaluation that concluded the client’s mental illnesses did not support a request for mental disease or defect as an affirmative trial defense – a notably high bar to achieve. However, the attorney then did not present evidence of the client’s mental health at sentencing, and the client received a very long prison sentence.
As I pondered this situation, I wondered whether the attorney had considered requesting sentencing alternatives available for clients who have mental illnesses under K.S.A. 22-3429 and K.S.A. 22-3430. Prior to the United States Supreme Court’s decision in Kahler v. Kansas, most defense attorneys were not even aware that these alternatives existed, so I was encouraged to write a short piece for the newsletter to spread the word so that others with similar cases can hopefully take advantage of this relatively unknown statute.
In Kansas, mental health evaluations are beneficial for various reasons, at various stages of a client’s case. In addition to providing trial counsel a window into how to best communicate with and advocate for their client, an attorney may use a mental health evaluation to challenge competency prior to trial or pursue an affirmative defense at trial. While the bar for these two uses is incredibly high, a third place to use a mental health evaluation is at sentencing.
Mental health evidence is explicitly recognized as a mitigating factor in both guidelines and off-grid murder cases. See K.S.A. 21-6815(c)(1)(C) and K.S.A. 21-6625.
But the legislature has created a provision that can be utilized at sentencing for any client with a mental illness and provides substantial discretion to sentencing judges. Further, this provision has no requirement that a client’s mental health has previously been made an issue in the case.
Under K.S.A. 22-3429, as part of a PSI, “the trial judge may order the defendant committed for mental examination, evaluation and report,” and this report “shall be furnished to the judge and shall be made available to the prosecuting attorney and counsel for the defendant.”
Under K.S.A. 22-3430, if this report shows (1) the client is in need of treatment, (2) the treatment may materially aid the client’s rehabilitation, and (3) giving the client treatment would not present a danger to the client or the public, the court may commit the client to receive mental health treatment in lieu of confinement or imprisonment.” I would think that many clients are in need of mental health treatment, that such treatment would aid their rehabilitation, and there is no danger to society for the client to receive treatment.
Under. K.S.A. 22-3431, when treatment at a mental health treatment facility would no longer “improve” the client, the facility provides a report to the district court and the district court is required to hold a hearing, where the client can be “sentenced, committed, granted probation, assigned to a community correctional services program, or discharged as the court deems best under the circumstance.”
The upshot of this scheme is that if a client is committed under K.S.A. 22-3430 and returned to the district court under K.S.A. 22-3431, the district court has enormous discretion to impose a lesser sentence or even discharge the client. The Kansas Supreme Court has held that this discretion supersedes other sentencing restrictions, like departure restrictions under the guidelines. See State v. Hildebrandt, 270 Kan. 1, 5–6, 12 P.3d 392, 395–96 (2000). And the United States Supreme Court's decision affirming Kansas’ elimination of the insanity defense implicitly acknowledged that this sentencing option would apply even in cases where a mental disease or defect was not an issue. Kahler v. Kansas, 140 S. Ct. 1021, 1031 (2020).
But this entire sentencing scheme is triggered upon the evaluation described in K.S.A. 22-3429. Although a district court can probably order such an evaluation sua sponte, a request is more likely to produce fruit. And although I recognize that many district courts will not be amenable to lenient sentencing under K.S.A. 22-3431 and clients will still often receive draconian sentences, it would at least provide some options if a judge was interested in finding some other option than throwing a mentally ill person in prison for most or all of the rest of their lives.
So if you have a client with a mental illness who would benefit from treatment in lieu of incarceration, you might consider requesting an evaluation under K.S.A. 22-3429. If you can provide the district court some evidence of mental illness, such an evaluation is at least possible and would only slightly delay sentencing. And if the client is subsequently committed for treatment under K.S.A. 22-3430, when that treatment is complete, it could open a lot of sentencing options for that client. And even if the client doesn’t receive the benefit of these sentencing options, they will have at least received the treatment that they deserve.