Crime & Treatment – Specialized Treatment Departure Elements To Prove

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.

Hi, welcome back to Florida Criminal Law TV. My name is Attorney Stephen G. Cobb. And today, we are talking about crime and treatment and we are at the point where a diagnostic evaluation has been performed. We have abnormal brain images with our patient defendant, we can compare the abnormal brain images to what healthy brain images should look like, what that person’s brain should look like, and we are using it for mitigation, we are not using it for not guilty by reason of insanity or to excuse criminal behavior at all.

What we are doing instead is we are making a suggestion to the court to sentence smart, in other words, to save the taxpayers’ money. Now, what do we have to prove if we are going to use this kind of technology so that the judge can depart from a point-based minimum? In the last video, we used an example “Aggravated Battery by Battery To A Pregnant Person”, a level 7 offense under chapter 921’s offense severity ranking. And it also scores 56 points straight out of the box on a rule 3.992A scoresheet meaning it is above 44, so it is just a matter of how much prison is based upon how many other points are on that particular scoresheet. This could be a sex offense, this could be a number of different other crimes. But the key is that because of the points, the judge must impose a state prison sentence unless one of the rules 3.992B departure grounds is proven and we are talking about specialized treatment.

Now, with specialized treatment, you have three basic things you need to prove. Number one, you need to show that the person has a mental disorder or physical defect that is unrelated to drugs or alcohol. Immediately, most of my colleagues, go, “Oh, this case involves drugs and alcohol, I cannot use that kind of technology, it is automatically precluded”. Well, it is not and we will come back and I will explain why a little bit. But right now, let’s stick to the three things. So, first, we have to prove that there is a physical disability or mental disorder. Secondly, we have to prove that that person is in need of specialized treatment, not just general treatment. And third, we also have to prove that that person is amenable to treatment, which is a fancy way of saying, “They will be compliant with the treatment”. If you know anyone who has a mental health disorder who is non-compliant with medication and loses competency because of it, oh my god, that is one of the most horrible things to live with having a family member in that condition. And what is even worse is if it is you and you know it and yet there you go again and you find that happening, well there are some things to do to prevent that and a brain imaging diagnostic evaluation is key. Why? Well, for one, if someone has prescribed medication, the physician can target the medications a whole lot better.

Secondly, these diagnostic evaluations are not all about medication or putting somebody in a treatment facility especially not at the state hospital or other unit. Instead, as Dan Amen has said, “It is not about making a medicated brain or keeping someone’s brain medicated, it is about a healthy brain”. So, yes, medication may be involved but a number of other different technologies are involved such as specifically targeted psychology as well as, believe it or not, nutrition and nutritional supplementation because many of those things have brain-enhancing qualities that affect human behavior. Now, if you do not believe this, just find somebody with hypoglycemia when they are super hungry and you will find out really quickly just how important nutrition can be.

As it turns out, it is more important than we imagined, so that is a component of most treatment plans and everybody’s treatment plan is going to be different. Now, let’s walk back through those different things again. We have a drug and alcohol issue with element 1 with the specialized treatment departure. Does the person have a mental disorder or a physical disability? The reason that drug and alcohol problems are not a deal breaker for that departure ground is simply that a doctor can sit there and say, “This could be caused by drugs or alcohol”, because as the brain talks in and this type of response to the surface of the brain where it looks like you have a hole, you really do not have a hole, you have less relative blood flow compared to other areas of the brain and this causes behavioral problems, that could be related to mold, it could be related to alcohol abuse, it could be related to drug abuse. So, in other words, they can look at that and say, “Yes, in response to a question from a prosecutor, yes, this could be a result of the defendant’s use of illegal drugs or legal drugs”.

At the same time, they can look at other parts of the brain image and they can say, “See this right here, we never see that result as a result of drugs or alcohol”. And right away, we have met the first element that someone has a physical disability or a mental illness, mental disorder unrelated to drugs or alcohol. And by the way, I would like to now tell you the number of healthy brain images I have received since 2005 has sent more people for brain imaging diagnostic evaluations than any other lawyer in criminal law. Zero. I was shocked. Not a single person has come back with healthy normal brain images.

Now, of course, a lot of snarky people go, “Oh, well, everybody’s brain is a little off”, well yes, everybody is not committing aggravated battery, everybody is not stealing stuff, committing sex offenses, name your crime here, domestic violence, simple battery whatever. People with healthy normal brain images, generally speaking, I would submit, are not doing that, and people with abnormal brain scans are. So, it makes a lot of sense to fix that problem, which takes us to number two, does that person need specialized treatment?

And what we have found with these ginormous three-ring binder reports we get that are filled with information diagnostically as well as filled with information for treatment, is everybody needs a specialized treatment plan. And why do they need a specialized treatment plan? When you think about it, with broken bones, going back to my hypothetical, at the very beginning of this series, the 12-year falling off the roof of the car, does it make sense that everybody who comes in with a broken bone of any kind gets a red cast on their right leg? Absolutely not. They get a customized, individualized treatment plan because that is smart and that is part of the problem with the criminal justice system so many parts are not. So, with this second element, once we have shown the first one, we can show that this person needs a specialized treatment plan. And then there is the third issue. Is this going to be one of those cases where someone is not going to do what they are supposed to do? If I had a nickel for every time I have given somebody an assignment to do a 4-day fact pattern report that we require of everybody we represent, I would have nickels piled to the ceiling and this has a pretty high ceiling, you cannot see the whole studio but it would be a lot of nickels.

And with mental health disorders and substance abuse disorders, non-compliance with the treatment is a huge problem. If you have a family member with a behavior problem, I do not need to tell you anymore. You have lived with it, you know there is a compliance problem. Well, with these types of diagnostic evaluations, we get them done very early in the process shortly after arrest if the person is out on bond. Then, we have literally months and months and months before a case goes to trial. The speedy trial rule in Florida is 175 days from the date of arrest for a felony case. In reality, I tell people to budget 5 to 7 months because quite often, we have to do at least one motion to continue because some type of evidence was not provided that is required by Florida law and the rules of criminal procedure. So, we have months and months and months for that person to show accountability.

And by show accountability, I like it if they are recommended that they go to a particular type of counseling, they show proof of it, that if they are ordered into the second type of counseling like one is individual, one is group, then they show proof of attendance. If they are prescribed medication, I like to show proof of refills. If they are required to take certain nutritional supplements in a specific order and everybody’s a specific order of all these different things, everybody’s treatment plan is different. I mean no two are exactly the same. Two people can have a hellacious drinking problem, the same problem, alcohol, and yet their treatment plans will both be very big and completely different. I have seen all kinds of things used to treat alcohol abuse disorder types of illnesses. And they have all worked and the reason is simply that they gave the right treatment to the person in question. They personalized it to that individual. And so, however it is personalized for that third prong, amenable to treatment, I never think it is a good idea to go to court and say, “Judge, my client promises to do A, my client promises to do B, C, D, E” and the rest of the alphabet, I think it is much better to walk in, “My client was supposed to A, here is proof of A. My client was supposed to do B, here is proof of B”. So, we have plenty of time from the beginning of the case until we actually go to a contested sentencing hearing because we have tried negotiations, that did not work and so now we are at a sentencing hearing and we are going to use a physician. And when we go to this hearing, we are able to bring all of this information out. And we have to bring in witnesses.

First of all, we have to bring in a witness who performs the evaluation. They made the judgment call and wrote the report and we ask them specific questions about it. And then, if the individual does not live where the diagnostic center is, then we might have to call another physician to say did you prescribe medication, what dose, did you make any dosage adjustments, have the person come to their appointments, have they been on-time, do you know if they were taking their medicine, “Yes, I got a copy from the pharmacy and this shows that they refilled it on this date, this date, and this date and this date”, did you do blood level testing because if it is something like lithium, they will do blood level testing, “Well, no, we did not do blood level testing but I have noticed a significant improvement in behavior outlook and perspective when they would come in for medication review once every two weeks or month or whatever it is. And so, we might have to talk to another person on the stand.

And then, finally, if they are ordered into counseling, we might need to have proof of that and we might need a live witness for that. Now, it is pretty involved when we do these types of brain imaging hearings. But in reality, we have large numbers of people charged with offenses that are shocking in terms of their punishment. They have never been in trouble their entire life, they are, say, 45, 55, 35, however old they are and the first time they get in trouble with the law and we will say it is a non-violent offense, they are looking at years in state prison. Now, if this actually worked as an effective treatment modality and we could be assured as a society that this punishment treatment actually worked, then you could sit there and you could say, “This is a great investment. We spent $50 a day to lock this person up in state prison for years and years and years, which means about $18,000 a year and after spending close to a quarter of a million dollars, oh, wait, they are charged with a more serious and violent felony”. Well, we know that is a bad idea. Instead what we suggest to courts is to save that money and invest in treatment that works.

This saves the taxpayer’s money and prevents you as a member of the public from being further victimized by crime down the road because we have used a different paradigm than crime and punishment, we used a paradigm, which is the future of criminal law crime and treatment.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talking to text on your smartphone, there may be misspelled words or sentence fragments.