THE UNTOUCHABLE

EVERYONE AGREES JOHN SAHHAR DOESN'T BELONG ON THE STREET, BUT NOBODY WANTS TO TAKE CARE OF HIM.

In August 1987, the Secret Service arrested a Phoenix man in Southern California on charges of threatening to kill then-President Ronald Reagan.

It didn't matter to the feds that John Sahhar was being held in the Santa Barbara County Jail on minor charges when guards heard him utter threats against Reagan. Sahhar faced a maximum prison term of five years if convicted of threatening Reagan.

Eight years after his unfortunate jailhouse blathering, Sahhar remains locked up--three years longer than if he'd been tried, convicted and sentenced.

But Sahhar, now 41, never has been tried for his crime, and surely never will be.

Because he has been judged mentally incompetent to stand trial, Sahhar--who one judge has labeled a "substantial risk to the community"--remains in a maximum-security medical center for federal prisoners in Springfield, Missouri.

Sahhar's quirky case has been the subject of two major opinions by the 9th U.S. Circuit Court of Appeals, one in 1990 and the other a few months ago. Both opinions have gone against Sahhar.

What to do with Sahhar has become the subject of a spirited, sometimes testy debate among the feds, the State of Arizona and Maricopa County authorities. At issue is who is responsible for the continued treatment and housing of Sahhar.

Mental health officials across the nation are keeping a close eye on the Sahhar case, which could force states to assume responsibilities they have avoided.

No one is arguing that Sahhar, who has a long history of mental illness, should be returned to society now or anytime soon.

But the warden of the Missouri-based U.S. Medical Center for Federal Prisoners wants Arizona to take responsibility for Sahhar, preferably at the state hospital in Phoenix.

"It is the clinical opinion of our staff that Mr. Sahhar suffers from a major mental illness," Warden G.L. Hershberger wrote to the Maricopa County Attorney's Office on July 5.

"As a result, [he] would present a substantial risk of bodily injury to the person and property of others. He has required housing in a structured, secure unit to control his predatory and violent behavior . . . Arizona should not negate their responsibility in the care, custody and treatment of Mr. Sahhar."
The warden seems to have the law on his side. Unlike the states, the feds have chosen not to establish a comprehensive system of civil commitment. Instead, the states are supposed to have the unenviable task of committing and keeping watch over mentally ill, potentially dangerous persons.

"The general field of lunacy . . . is reserved to the states," a 9th Circuit judge wrote in May, while ruling against Sahhar's most recent appeal, which sought his release from federal custody.

The appellate judge's opinion is buttressed by a federal law that requires states to exert "all reasonable efforts" to return mentally disturbed prisoners such as Sahhar to their state of residence for psychiatric treatment.

Arizona and Maricopa County officials, however, have told the feds they don't intend to take Sahhar.

The feds say Arizona State Hospital (ASH) superintendent John Migliaro told them last month that Sahhar is dangerous only because of an antisocial personality, which the hospital doesn't treat.

That diagnosis, however, runs counter to ASH's own 1990 diagnosis of Sahhar. He was brought to Phoenix from the Missouri facility for an assessment, which abruptly ended, records show, when Sahhar punched another patient. Doctors at the hospital said Sahhar was a chronic paranoid schizophrenic--which is considered a serious mental illness.

"Dr. Migliaro further indicated that his staff felt Mr. Sahhar should be handled within the criminal-justice system and not the mental-health system," Hershberger, the federal warden, wrote.

To Sahhar's attorney, assistant federal public defender Carlton Gunn, Migliaro's response seems a classic case of buck passing.

"If they had picked my client up off the street, there's no doubt they'd be treating him," Gunn says. "It's bad enough that this guy has been locked up for so many years without disposition. Now, his home state is saying, "We don't want anything to do with him.'"
Citing confidentiality laws, ASH's Migliaro won't comment directly on Sahhar's situation.

"First, we have to know if a person has a mental illness that we can treat or if the person is merely dysfunctional," Migliaro says, speaking generally. "There's a huge difference between being ruled incompetent to stand trial and being mentally ill. We also have to concern ourselves with the cost of caring for patients--it's about $55,000 a year per person right now."
But Migliaro and his ASH staff soon may be compelled to add John Sahhar to their list of patients. In May, the 9th U.S. Circuit Court of Appeals concluded that Sahhar's indefinite commitment is justified by the government's interests in protecting society from Sahhar and Sahhar from himself.

That opinion overturned a lower court's February 1994 ruling that ordered the long-standing criminal indictment against Sahhar dismissed. In overturning the indictment, U.S. District Court Judge David Kenyon pointed out that Sahhar had served more time in legal limbo than the maximum prison term permitted under the law.

Kenyon ordered the feds to release Sahhar from custody, either to Arizona mental health authorities or to his parents, who live in the Valley. But the judge agreed to a stay of his order to allow the government to seek an emergency appeal of the issue.

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