Richard Bosco was scaring his family. The 56-year-old unemployed man lived with his ailing mother in Schenectady, N.Y. His behavior and lifestyle had been relatively stable and uneventful. That was until earlier this decade, when he was fired from his job at General Electric where had had worked for 25 years. Mr. Bosco was devastated by the termination and had been furious ever since. He felt wrongfully terminated and sought revenge from General Electric officials and members of his union, whom he held responsible.
He told his daughter, "I'll take them out" with rifles and shotguns and then "kill myself to avoid jail." His rage against General Electric spilled over to family members whom he felt were unsympathetic to his circumstances. They feared for their safety. The fact that Bosco, a deer hunter, owned numerous firearms and weapons added to their fear.
In the fall of 1997, Bosco managed to get himself arrested. The charge against him was criminal possession of marijuana in the first degree. At the time of arrest the officer found 18 rifles and shotguns and over 300 bullets in Richard's home. The People opposed bail, arguing that Richard posed a clear and present danger by having expressed a desire to kill himself and specific members of the community. Testimony was presented from family members, law enforcement officials and psychiatric professionals about the risk they believed him to be.
WHAT BOSCO MEANS:
- A defendant's mental state may influence bail decisions
- Dangerousness unrelated to the charges may be considered
The jail psychiatrist had testified that although she didn't believe Bosco had a psychiatric disorder, he was "somewhat delusional." She added that "because these threats have gone on for so long, certainly everyone should be worried."
Holding: Bail was denied and Bosco was remanded. The County Court found clear and convincing evidence that his release into the community under the present circumstances, and at the present time, posed a clear and present danger to specific individuals. It did not as is usual, dwell on Bosco's criminal conduct as charged in the indictment against him. Instead, the focus was on his general mental state. In a rarely used remedy, the court deemed that "preventive detention" was appropriate as there was clear and convincing evidence that Bosco's seething, unceasing hostility and rage made him a serious danger to his community and to himself
This rare use of dangerous criteria at a bail hearing is not unconstitutional as there is nothing in the New York State or U.S. Constitution which prohibits the Court's consideration of a defendant's mental state. There is also no requirement that a defendant's dangerousness or potential for violence be related to the conduct charged in the indictment against him.
| Robert Miller, M.D. Professor of Psychiatry University of Denver |
Dr. Miller comments: Although not explicit in the opinion itself, this case raises a number of complex issues concerning the role of mental health professionals in the corrections system. Such practitioners invariably find themselves enmeshed in a variety of role conflicts; they are retained by a system whose regard for humane treatment of its charges is at best accepted as an unfortunate necessity, and at worst forced upon it through litigation or the fear of litigation. Mental health professionals especially psychiatrists, are hired grudgingly, and most often expected not to challenge the security/punishment priorities of the correctional system.
Psychiatrists have an ethical obligation to advocate for improved mental health services (American Psychiatric Association Task Force on Psychiatric Services in Jails and Prisons Report, 1989), and this duty frequently conflicts with the system's priorities. Since many more seriously mentally ill persons are incarcerated in correctional facilities than in hospitals these days (Miller, R "The continuum of coercion: Constitutional and clinical considerations in the treatment of mentally disordered persons." 74 University of Denver Law Review 1169, 1997), the problem has become even more significant.
In this respect jails are usually worse than prisons; the latter are state-wide systems with relatively stable (if frequently overcrowded) populations, and have sufficient numbers of inmates to permit development of specialized mental health units with adequate staffing. Larger jails also have this capacity; but the great majority do not, and therefore psychiatric coverage is frequently minimal or absent altogether. Mental health services in the majority of jails are provided (if at all) by general physicians or non-medical mental health professionals from the community.
When psychiatrists are asked to see inmates, the goals are often unclear. The client is not the patient, as in general clinical practice, but the facility. In addition to the standard reporting requirements that override doctor-patient confidentiality in the clinical context (e.g., child abuse, future danger to third parties) correctional facilities expect psychiatrists to use their knowledge of patients to alert guards to escape and other plans that might disrupt prison security. They also expect psychiatrists to perform release evaluations (for parole, and for bail, as in this case). Usually, psychiatrists are asked to perform such specific evaluations after they have already performed clinical evaluations; and it is quite unusual for them to have disclosed to the inmates at the time of their initial evaluations that the information may be used for other purposes, thus violating the ethical requirement to provide full disclosure.
In addition to ethical dilemmas, correctional psychiatrists face increased risk of liability. The patients they see are more dangerous than in a general practice, and certainly more likely to be perceived to be dangerous if they commit future crimes. Correctional psychiatrists have little control over the disposition of inmates, but may face liability for failing to foresee their future behavior and to warn identifiable victims.
Unfortunately, most psychiatrists choose to avoid these ethical and liability dilemmas by not providing services to correctional populations, thus leaving the field to those who are comfortable aligning themselves with corrections professionals. This (understandable) flight from an ambiguous and ethically problematic job description only further reduces the quality and quantity of mental health services available to the increasingly large numbers of seriously mentally ill inmates. With the need for quality intervention so vital in the inmates later to be released on bail, addressing this shortcoming goes far beyond mere sympathy for criminals.
