An East Valley lawmaker wants the law re-examined after learning that an Apache Junction woman who killed her 7-year-old daughter could be released Friday after spending less than four years at the state mental hospital.
"Honestly, four years for murdering that child does not seem like justice to me," said Sen. Thayer Verschoor, R-Gilbert, vice chairman of the Senate Judiciary Committee.
Barbara Downey's case also has come to the attention of Gov. Janet Napolitano.
"First of all, the governor is concerned by the facts that have come to light so far and we are looking into the matter," said spokeswoman Kris Mayes. "That said, the law provides for a board of trained psychiatrists and psychologists to make these decisions, and the governor trusts that that board will make the right decision."
Downey, 30, was committed to the Arizona State Hospital in Phoenix in October 1999 after pleading guilty except insane in the May 1998 death of her daughter, Jessica Helms.
Downey felt the child's death would allow God to forgive her for having children out of wedlock and for having a hysterectomy during which she unknowingly terminated a tubal pregnancy, according to a presentence investigation report. By shooting Jessica, she believed she would guarantee her family's entrance into heaven when the world ended.
Friday, if at least three of five members of the Arizona Psychiatric Security Review Board agree that Downey is no longer mentally ill or a danger, she could be conditionally released.
The Legislature might need to re-examine the guilty except insane law, Verschoor said. People convicted under that statute should be confined for a lengthy sentence, even if they recover from their mental illness after only a short time, he said.
"We need to look at if we are going to take victims' rights seriously or not," he said.
Dr. Lauro Amezcua-Patino, chairman of the review board, said he can understand why people might not be pleased to see someone freed so quickly after a murder.
There have been many failed attempts to pass legislation that would require people deemed sane to move from a psychiatric facility to a prison, he said.
"I understand the public outrage, but the people who are outraged need to be redirecting their outrage toward changing the legislation," Amezcua-Patino said.
The law now states that someone who is sane and no longer a danger, must be released from custody, Amezcua-Patino said.
Arizona's insanity laws changed in 1995. Before that, people who were found not guilty by reason of insanity fell under the auspices of the judicial system. Once a judge determined they were sane, the defendant was released from the State Hospital without supervision.
Now, people who are found to be guilty except insane (the wording of the charge also was changed) are sent to the state hospital for the equivalent of whatever prison term they would have received had they been sane. They are managed by the review board, which was specifically created for that purpose. Once considered sane and nondangerous, patients are released from the hospital, but are monitored for the remainder of their term by the review board.
Should Downey be released, she will be monitored for the rest of her life.
"If this had happened before 1995, this lady would be on the streets without supervision at all," Amezcua-Patino said. "If you look at what we had before 1995 and what we have now, we are a lot safer. Our first job is to make sure they're not going to go out and recommit another offense. Our second job is to ensure they get the treatment they need."
Citizens should rest assured that when making a decision on releasing a patient the board looks closely at the proposed terms of release and who will actually be monitoring the patient on behalf of the board.
"I and the board don't tolerate any violations of the conditions of release," Amezcua-Patino said.
Joel Dvoskin, a Tucson psychologist and expert witness, and Dr. Jack Potts, the former chief of the Forensic Sciences Unit for Maricopa County Superior Court, said people who suffer a psychotic break can rebound quickly with medication and treatment.
Potts said four things ought to be taken into consideration in the Downey case.
"One, she is going to be better monitored than the people on parole. Two, she was insane at the time of the incident. Three, there is no doubt that she loved the child dearly and but for the fact she was mentally ill, the child would be alive today," Potts said.
Finally, Downey will likely be a productive member of society instead of costing the taxpayers money in terms of housing and treating her.
The time Downey spent at the hospital is a small factor in making a release decision, Dvoskin and Potts agreed.
"I can tell you a multitude of factors go into determining who can be freed or not and time is only one of them," Dvoskin said. "There are some who, after 100 years, can't be released and others who have only been treated a short time who can be."
Among the things physicians must consider when releasing a patient are: What factors led to the incident; how long was the patient exhibiting symptoms of the mental illness; what treatment plan has been developed; the patient's attitude; and what sort of support system the patient has, Dvoskin said.
"The fairer question isn't whether or not they are ready to be released, but
under what conditions will they be released?" Dvoskin said.