Academic

Faculty Blogs: Dangerous Incompetence

Fourteen months ago, a man named Warren Stone, age 55, bludgeoned, mutilated, and killed his 78-year old mother in Henry County, Kentucky. 

In the first hours after the killing, Mr. Stone, who is mentally retarded, sat alone by his mother's dead body.  Eventually he left the body and wandered down the road towards his sister's house.  When he arrived at her door, he stood, covered in blood, holding a television remote control.  Mr. Stone then confessed to the killing, and explained that he'd become angry at his mother for denying him access to a television set.  He was promptly arrested, charged with murder, and, soon thereafter, diagnosed by state psychiatrists with a condition known as "Intermittent Explosive Disorder."        

On June 1 of this year Mr. Stone was declared legally incompetent and the criminal charges were dismissed.  No big deal, right?  Mr. Stone has an IQ of 56, and, after all, our nation maintains a durable infrastructure of government-run facilities to house and care for persons like this--persons whose diminished mental capacity precludes a criminal conviction but whose ongoing freedom poses a substantial threat to the public safety.  Here in Kentucky our standard for involuntary hospitalization of a mentally retarded person, set forth at KRS 202B.040, has long been interpreted to require, among other things, that the subject present "an imminent danger to self or others."

This is where it gets weird.  The Commonwealth's Cabinet for Health and Family Services (more specifically, its Department for Mental Health, Developmental Disabilities, and Addiction Services) concluded that, pursuant to Chapter 202B, Mr. Stone is not eligible for involuntary hospitalization.  Any danger presented by Mr. Stone, we're told, does not rise to the level of "imminent." 

Huh?

You're probably thinking that the Cabinet's conclusion, while intuitively alarming to the non-expert, must surely be rooted in sound methodologies of clinical psychology.  Well, it's not.  The Cabinet's psychologists, I've recently learned, issued their findings of "no imminent danger" without bothering to interview Mr. Stone's surviving family members or treating physicians.  (Lo and behold, at least two family members, neither of whom was interviewed by the Cabinet, witnessed violent outbursts from Mr. Stone during the months leading up to the killing.  And one doctor, also overlooked by the Cabinet, states that Mr. Stone, in a letter written two years ago, threatened "to come over and cut [his] balls off.") 

And so Mr. Stone, deemed incompetent to stand trial yet insufficiently dangerous for involuntarily hospitalization, was released from state custody nine days ago.  Because no private care-facility would accept him (on the ground that he is dangerous) and none of his family members were willing to take him in, it was decided by the Cabinet that Mr. Stone would move into the apartment of his choosing. 

Note that Mr. Stone's new apartment is not located, designed, or furnished to manage the particular safety concerns posed by his tenancy.  Rather, it's just a regular apartment in a regular complex on a regular block.  (A Cabinet spokesperson assures us that Mr. Stone will be living with privately-funded "supervisors.")  While the location of Mr. Stone's new residence is the subject of a gag order, the widely-held assumption, based on the public comments of his attorney, is that he's renting in the Iroquois Park neighborhood of Jefferson County. 

So, my fellow Kentuckians, I find myself compelled to piece together the Commonwealth's policy regarding just who, here in the year 2009, presents "an imminent danger to self or others."  

While we don't know precisely where the Cabinet draws the line, we do know this much:  If (1) you are mentally retarded, (2) you are diagnosed with something called "Intermittent Explosive Disorder," (3) your family members and treating physicians have observed in you an increased prevalence towards violent outbursts, and (4) you actually, in the real world, bludgeon, mutilate, and kill your mother after a disagreement over access to a television set, then, rest assured, you are not "an imminent danger to self or others." 

Wild.

Just for a moment, let's give the Cabinet the benefit of the doubt (in other words, forgetting both (1) its gross negligence in failing to interview Mr. Stone's family members and treating physicians, and (2) its undeniable interests in controlling the operating costs of state hospitals).  Maybe--just maybe--the operative terms of the Chapter 202B analysis ("imminent" and "danger") are too ambiguous to insure reliably good administrative outcomes.  If that's the case (and I don't think it is), then we Kentuckians must go ahead and amend the Chapter (as it stands at least one state senator has expressed interest in such a bill).  The next time around, I say we go with a standard that's a little less legal and a little more folksy.  I'm thinking something along the lines of: "Would it be safe to let this person reside in a guest room at the Governor's Mansion for the rest of his life?" 

Should Mr. Stone, God forbid, do violence again, I can only hope that, as a mere token consolation, it will derail the careers of every government official who sat perched along the chain of command in this matter--from the evaluating psychologists and directors up on through to the Department Commissioner, Cabinet Secretary, and Governor (whose office has been notified about this matter on multiple occasions over the past year). 

How sorry it all is.             

Full post as published by University of Louisville Law Faculty on June 10, 2009 (boomark / email).