Law change could put fate of violent mentally ill in hands of judges

Kansas legislators have renewed a debate on who should decide when a severely mentally ill criminal gets to walk free — a judge or state health officials.

Health officials now make the call in the cases of people who have been declared mentally incompetent to have ever stood trial. But the state should consider public safety above mental health, say some lawmakers, prosecutors and even defense lawyers.

They cite the case of Howard Barrett, 56, who was found incompetent for trial on a charge of shooting a man in western Kansas in 2001. He was committed to mental care, but Social and Rehabilitation Services officials later released him because they thought he could be managed well in the community. Now he is accused of stabbing a man to death in Riley County.

And the issue may hit closer to home this month, as a judge considers whether Adam Davis, 31, is fit to stand trial on charges that he murdered his girlfriend, Amber R. Searles, 24, and their 4-month-old daughter, Kyra Searles-Davis, in Olathe last year. Both prosecutors and defense attorneys asked for a mental evaluation of Davis at a hearing on Jan. 6.

Those working to change state law want to make sure that judges approve the release of people who were ordered into mental care after violence — people who were unable to understand court proceedings and help with their legal defense and so could not go to trial.

In Barrett’s case, even his defense lawyer doesn’t want SRS officials — who are struggling with crowding at state mental hospitals — to set him free.

Larry McRell, a chief public defender, said, “Keeping him in mental care is in everybody’s best interest, his own included.”

McRell is working with state district attorneys and Rep. Pat Colloton, a Leawood Republican and chair of a House justice committee, to change Kansas law, which now is similar to the law in Missouri for people who never stand trial.

Helping them is Riley County Attorney Barry Wilkerson, who wants to stop the health officials from releasing people into communities that don’t have the health resources to oversee them.

“They are just put out on the street,” he said. “The insanity of that is what we’ve got here.”

A legal change faces constitutional issues, though.

In 1972, the U.S. Supreme Court ruled that Indiana violated the rights of a mentally ill man charged with crimes by holding him in a treatment facility for what was essentially a life sentence. The man’s crimes amounted to stealing a purse and $5, but he could be released only if he were found sane, which was unlikely.

The same issues would be in play for people who were accused of more serious crimes, too, said Sean O’Brien, a professor at the University of Missouri Kansas City School of Law. Putting their fate in the hands of judges after they were deemed too ill to stand trial could violate their right to equal protection.

“Maybe they don’t agree with it,” O’Brien said of those who want to change Kansas law, “but it’s the constitution, for crying out loud.”

Clay County, Kan., Attorney Richard James, who was a cousin and friend of Larry James, the man Barrett allegedly stabbed to death in 2008, said the state needs to figure out a better way to protect people.

His cousin was a farmer who also worked part-time as an exterminator and his death at age 48 left his widow and their two daughters to carry on without him.

“All of our lives were thrown into chaos because the state couldn’t get a handle on its mentally ill,” he said. “The system is just broke.”