Cane Madden (Courtesy of Louisville Metro Corrections)

Incompetent to stand trial, competent to offend

In February of this year, Cane Madden of Kentucky was released after allegedly sexually assaulting a woman. Per arrest records, Madden was accused of biting the victim and “removing a large chunk of [her] face.”

Face-ripping is the sort of behavior that you imagine wouldn’t elude the grasp of the prosecutor’s office. Not, it seems, in Kentucky.


Madden was arrested — his sixth arrest, with a rap sheet including burglary, assault, and threatening to kill a child — but soon after his arrest, a clearly deranged Madden was found incompetent to stand trial and was sent to Kentucky Correctional Psychiatric Center (KCPC), the state’s competency restoration facility, for the entirety of the 30 days allowed by statute. Still unable to aid in his own defense at the end of 30 days, Madden was placed by Judge Annie O’Connell on an additional 60-day hold, the longest extension permitted by Kentucky law.

The 60-day extension came and went, and Madden was still unable to stand trial. Judge O’Connell said, since he was “unlikely to regain competency in the foreseeable future,” the sexual assault charges against him would be dropped. The burden then fell on the prosecution to civilly commit Madden —an obvious danger to the community — to one of Kentucky’s psychiatric hospitals for treatment. They succeeded.

Later, however, the hospital released Madden, insisting it had no legal standing to hold him. Why? He didn’t meet the state’s strict standards for involuntary commitment.



In May, mere months after his February release, Madden was arrested again, this time for investigation of breaking and entering a place of business. The same process ensued — a competency hearing, a fruitless attempt at restoring competency, dismissal, civil commitment, and ultimately, release.

A psychiatrist from the KCPC, a facility where Madden had previously assaulted staff — testified before a judge that Madden had verbally expressed his desire to “kill and rape the first female he came in contact with” upon his release, and also wrote letters which stated that “he wanted to grab a three- to six-year-old and have sex with them.”

Even though he was unfit to stand trial and the breaking-and-entering charges were dropped, Madden’s deranged behavior was sufficient grounds for the prosecution to commit him to one of Kentucky’s four state hospitals. Staff at Central State Hospital in Louisville, where Madden was sent following the May arrest, nevertheless discharged him soon after his admission, again citing Madden’s failure to qualify for involuntary commitment according to the state’s four-pronged statutory threshold.

As Madden promised he would, he proceeded to “rape the first female he came in contact with” less than 24 hours after his discharge. He was arrested in August after allegedly beating an eight-year-old girl over the head with a shovel, fracturing her skull, and violently raping her while she was unconscious.



Madden is back in police custody. His defense attorney is asserting that he, again, is incompetent to stand trial. If a judge finds that he is, precisely the same procedures that set him loose last time could do so again.

Madden, unfortunately, does seem incompetent to stand trial. Local Fox affiliate WDRB reports that Madden “has, at times, been unable to answer even the most basic questions about his life: where he was born and raised, what school he went to and why he received a disability check.” In his February trial, the same Judge O’Connell said that “Mr. Madden lacks the intellectual capacity to understand his basic constitutional rights.”

There are two major questions here. First, why does Kentucky insist on dropping the charges for an incompetent, mentally ill defendant accused of a violent crime after 90 days? And, more directly, why can’t the state hospitals keep a man off the streets when he is clearly mentally ill and a danger to other people?


Incompetence to stand trial is different from an insanity plea. Madden’s previous sexual-assault charge was never brought to trial not because he was adjudicated not guilty by reason of insanity, but instead because, as Judge O’Connell asserted, he was not capable of understanding the case against him. Competence refers to a defendant’s ability to aid in his own defense, a judgment of his fitness ex tempore which does not bear on his sanity at the moment of the crime. An insanity plea, by contrast, means the defendant is not culpable for his actions because he was insane at the time he committed the act. It makes no remark on the defendant’s current mental state.

Incompetent defendants and forensically insane patients often (but not always) end up at the same forensic hospitals. But the latter category are assigned sentences they must serve in those hospitals — either indefinite detention, pending their rehabilitation, or for some constrained period of time — while the fate of the former group varies wildly from state to state.

But it’s not as though Kentucky’s loophole is a national problem. The WDRB report highlights the starkly different approaches taken by neighboring states with incompetent defendants. Indiana, for instance, remands a defendant to a state hospital until he is competent to stand trial; instead of Kentucky’s 30-day maximum and a possible 60-day judicial extension, Indiana allows for incompetent defendants to be held in a state hospital for a period commensurate with the criminal penalty for the alleged crime.

Kentucky’s policy of dropping the charges against defendants who are unfit to stand trial following a 30-day attempt to restore their competency forces the state’s civil commitment statutes — the ones used by the prosecution to remand Madden to a state hospital — to be strong enough to securely hospitalize an imminent threat like Madden. Unfortunately, they aren’t.

Kentucky’s four-step test for determining a person’s eligibility for involuntary commitment is as follows: 1) A person must be mentally ill; 2) he must be a danger to himself or others; 3) he must be reasonably expected to benefit from treatment offered at the hospital; and 4) hospitalization must be the least restrictive treatment method available.


If an individual fails to meet even one of the four criteria — even if he is an immediate threat to himself or others, as Madden obviously was — he cannot be involuntarily held in a psychiatric facility.

This ironically allows Madden’s attorney to argue that since his mental illnesses were so acute, and his mental incapacity so profound, treatment at a state hospital would not “benefit” Madden as the statute demands. Courts reluctantly agreed, and Madden was discharged from Central State Hospital hours after his arrival.

Madden is too mentally ill to treat. This is absurd, obviously, and Hardin Commonwealth attorney Shane Young noted as much: “The person we can’t help — the person who’s so mentally ill that they’re not going to be helped, they’re not going to be better — those are the ones we’re required to release back into the public.”

Lawmakers are reportedly mulling changes to the commitment standards, as well they should. But those changes can’t come soon enough: Madden’s trial could well proceed with no statutory changes, and he’ll once again be released to the broader community.

Jefferson Commonwealth attorney Tom Wine told WDRB that prosecutors will “have no alternative” but to release a mentally ill man accused of assaulting and raping an 8-year-old girl if he is found incompetent. It’s incumbent upon lawmakers to give him one.