Insanity acquittal for misdemeanors can mean quick out
By Walter Wright
Advertiser Staff Writer
Defendants acquitted of felonies by reason of insanity are rarely released from the judicial system without restrictions, but there is far less scrutiny in misdemeanor cases like that of Cline Kahue.
Kahue gained an insanity acquittal on five misdemeanor assault counts five years ago. He was committed to the Department of Health, which houses such people at the Hawai'i State Hospital.
But unlike some defendants acquitted by reason of insanity of more serious crimes who spend decades at the hospital or under monitoring by health officials, Kahue was released from Department of Health supervision in March of last year.
Kahue, his history of mental problems and how he has been handled by the system became issues this week after he was accused of killing a 71-year-old man and assaulting two women Tuesday along the Ala Wai Canal.
Those charged with felonies, but found not guilty by reason of insanity, are rarely discharged and many remain on conditional release for 10, 15 or 20 years — far more time than they might have served if convicted of the crime, said Deputy Public Defender Todd Eddins.
Offenders at the misdemeanor level, however, are more likely to be released, and without much consideration, because their offense may suggest they are less dangerous and society doesn't want to spend money caring for them, Eddins said.
"It's inherently difficult to assess future dangerousness," Eddins said. Some use that fact to be more cautious, others to argue for release, he said.
Marvin W. Acklin, a clinical and forensic psychologist who often sits on mental evaluation panels for the courts, said that "on the felony cases and the releases from the state hospital, they are doing a very good job.
"People are being screened pretty well, and the courts tend to err on the side of cautiousness."
Some may relapse and some relapses may not be predictable, Acklin said. Society needs an attractive continuum of care so people will voluntarily seek help with mental illness, he said.
"But do we want to have a kind of psychiatric gestapo monitoring every mental patient?" Acklin said. "We don't have the resources for that, or the willingness to infringe on the civil rights of our citizens."
In felony cases in Circuit Court, judges appoint a three-member panel of medical experts to advise the court about whether the patients should be discharged. In misdemeanor cases, such as Kahue's, the judge appoints a single medical examiner to advise the court about whether the treating physician's recommendation of discharge should be followed.
"They will comment on if the person is a danger to themselves or the community, and you make your determination," said Russel Nagata, Honolulu District Court judge.
The prosecution regularly opposes such releases and discharges, the judge said, often vigorously.
Kahue will appear in court Monday for a hearing to determine whether he must stand trial on a charge of murdering Jack Wyatt. Kahue is accused of pushing Wyatt into the Ala Wai Canal where Wyatt hit his head on the rocks and drowned.
Last year's discharge meant Kahue was no longer under any restrictions from his court case.
Those discharges mean that even if a person is mentally ill and must take medication to cope with the illness, there is no way under state law to force that person to continue to take the medication.
But to assure the courts that such people are no longer dangerous, a hearing is held during which the safety of the public and the civil rights of the patients are balanced. The judge must rely on medical experts.
"It's all you have to rely on," said Nagata, who talked about the process that puts defendants acquitted by reason of insanity back on the streets.
"All you do is depend on, basically, what the treating physician at the mental institution and an independent medical examiner have to say."
The medical experts will be relying on the patient's performance while on conditional release — a period in which they receive substantial attention from an Assertive Community Treatment team and from the probation department.
During that period the patient is not housed at the hospital, but is free under certain restrictions.
Dr. Tom Hester, head of the adult mental health division of the State Health Department, said the state is keeping up with a ratio of 10 cases per case manager in the ACT program.
Liesje Cattaneo of the Adult Probation Department said ACT teams frequently drive the streets for hours looking for a patient who may be headed for trouble. But Cattaneo said probation officers are hard-pressed to keep up with the demanding conditional release cases, who check in twice a month, because they are carrying case loads as high as 200 cases per officer.
Corrections: Acquittal of charges by reason of insanity does not necessarily lead to the quick release of the defendant. Release time depends on whether the charges were misdemeanors or felonies and on treatment status of the offender. The headline on a previous version of this story was misleading.
