LOUISVILLE, Ky. (WDRB) -- The state Supreme Court will not rule on the constitutionality of a 2021 law allowing indefinite hospitalization of defendants who are too mentally ill to stand trial and also fail to meet criteria for involuntary hospitalization.

At least not yet.

The high court on Thursday ruled, in essence, that it was premature for justices to decide the constitutionality of the so-called "Cane Madden law" because the Madden case and one like it have not concluded. 

"This Court sees no reason why a final order demanding indefinite involuntary commitment could not itself be appealed," according to the ruling.

In September, the Kentucky Supreme Court heard the cases of two Jefferson County people, including 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.

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

The defense attorneys claimed the defendants were suffering "irreparable injury" from being forced to participate in an unconstitutional law.

However, the justices ruled that while the "issues raised in these matters are serious and deserving of constitutional review," the cases must be concluded before the appeal process can begin. 

During the Sept. 14 arguments, 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.

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.

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Digital Reporter

Jason Riley is a criminal justice reporter for WDRB.com. He joined WDRB News in 2013 after 14 years with The Courier-Journal. He graduated from Western Kentucky University. Jason can be reached at 502-585-0823 and jriley@wdrb.com.