Cane Madden

Cane Madden in court. (WDRB Photo)

LOUISVILLE, Ky. (WDRB) -- The Kentucky Supreme Court heard oral arguments Wednesday as to whether a 2021 law is constitutional when ordering defendants who are too mentally ill to stand trial and also fail to meet criteria for involuntary hospitalization to be hospitalized indefinitely under certain conditions.

The high court heard the cases of two Jefferson County people, including Cane Madden, whose history of walking free after allegedly committing violent crimes prompted the change in state law.

Attorneys for the Louisville Metro Public Defender's office argued that locking up Madden for an unspecified amount of time without a guilty verdict is unconstitutional and his case should move forward under a different law where he could be confined for no more than 360 days.

"These hearings can result in an incompetent defendant's loss of liberty, despite never having been convicted of a criminal offense, and deplete precious (Kentucky Correctional Psychiatric Center) resources that are necessary to all indicted criminal defendants with suspected mental health issues," Deputy Chief Public Defender Beth McMahon wrote in her written argument.

She told justices that the media attention and legislators focused almost solely on Madden's situation, which included the possibility of him being freed if action wasn't taken. 

"Unfortunately, bad things often breed bad law," McMahon told the high court. "The way it was done and hurriedly passed through did not pass constitutional muster."

Both defendants, she argues, may not even be subject to the new law depending on whether it is found to be retroactive.

Michael Wajda, with the Attorney General's office, said the state's interest is "ensuring treatment for these individuals as well as protecting public safety" rather than just letting them go free because of a loophole in the system.

And he said there is no retroactive problem as the defendants still face the mental health problems they were suffering from before the law was signed and still represent a danger to the community.

Madden was charged with the August 2019 beating and rape of a Louisville child until he was found mentally incompetent to stand trial on March 11. He also failed to meet Kentucky's criteria for involuntary hospitalization.

In multiple instances in the past, Madden has been found incompetent and failed to meet this mental health criteria — meaning he repeatedly walked free — dodging both incarceration and mental health treatment.

He is currently at KCPC.

On April 1, 2021, Gov. Andy Beshear signed a bill into law that patched that gap in state law.

Under the new law, a defendant found incompetent has an evidentiary hearing, in front of a judge, to determine if there is a probability the person committed the crime. The defendant will have an attorney for this hearing.

But McMahon argues that the defendant — who has been deemed mentally incompetent — would not be able to assist his or her attorney. 

"The very fact of an individual's incompetency renders him essentially absent from the entire attorney client relationship and absent as a party to his own defense," she wrote. "It forces a person who is legally unable to present a defense to nonetheless be required to present a defense or face a potentially lifelong deprivation of his liberty."

If a judge finds there is a preponderance of evidence of guilt, there will be another hearing to determine whether it is in the best interest of the defendant and the community for the person to be involuntarily hospitalized using four new criteria:

  • The respondent presents a danger to self or others as a result of his or her mental condition
  • The respondent needs care, training, or treatment in order to mitigate or prevent substantial physical harm to self or others
  • The respondent has a demonstrated history of criminal behavior that has endangered or caused injury to others or has a substantial history of involuntary hospitalizations under KRS Chapters 202A or 202B prior to the commission of the charged crime; and
  • A less restrictive alternative mode of treatment would endanger the safety of the respondent or others

If the defendant is hospitalized, a judge would periodically review the status of the person.

McMahon argued the harm is that other defendants will unintentionally swept up into this law. 

"What HB 310 has done is not just close a loophole but they have widened a net," she said. "They are going to capture more people who should not necessarily fall within the provisions of the law."

She also argued that the original bill was not properly passed, in part, by not being read enough times. 

This story may be updated.

Copyright 2022 WDRB Media. All Rights Reserved.