Debra J. Saunders

Walter Olson of www.overlawyered.com noted that "as soon as you sue people personally, the atmosphere changes. There is fear in the office. Everyone is more grateful to the lawyers for getting that off the plate. That translates into higher settlement values, and the lawyers count on that."

It's not clear if the family-notification policy that was part of the settlement will save a single life -- because the inmate has to consent to treatment, and many mentally ill inmates may not want their families to know they need treatment.

There is another effect, however, of policy by litigation, Olson noted: It adds up. With excessive litigation, law-school clinics and government bodies choosing to settle because it's "near-term" cheaper, jail policies constantly are rewritten until you see "a way of running jails and prisons that very few people would have designed from scratch," Olson noted. "Outside management by litigators" amounts to "management by no one at all."

Let us not forget the other laws at play in this saga. Specifically, Martinez had the right to refuse a plea bargain and the legal ability to fight attempts to treat his mental illness.

Green railed against "incarcerating mentally ill folks" and "criminalizing a health care problem" when an individual really needs help. Treatment, she said, was "just what he wanted; it just wasn't available to him."

That's not what prosecutor Dana Overstreet told me. "The rest of us all recognized that this is someone who was insane at the time he committed his crime" and that he "did not belong in prison" and needed to be in a mental health facility. Her office was working on a "not guilty by reason of insanity" plea with Martinez's public defender, she added, but "the missing piece is getting him on board."

(By the way, the county did not even call Overstreet before settling with Martinez's mother.)

A mentally ill person can use the system to fight needed treatment -- and if he harms himself in the process, it's a jackpot for mom. This is the same mother who on Monday told Chronicle columnist Chip Johnson, "The Naked Guy thing didn't bother me because I knew there was a lot of thought behind it and he meant well."

Because Martinez killed himself in jail, she gets $1 million. Attorney Peggy Doyle, who has represented municipalities, noted, "Some tragedies seem inevitable, the only question being when and where they finally happen. The unpredictability doesn't make them any less tragic. It does make them more prone to litigation. For the defendant, there can be a luck-of-the-draw factor."

For the taxpayers, for the mental health workers and criminal justice officials caught in this snare, the cards were losers. Taxpayers can be squeezed and county workers can be accused, but they cannot win.


Debra J. Saunders


 
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