Mentally ill defendants languish in jail from lack of hospital space

ppemberton@thetribunenews.comJanuary 4, 2014 

As his client sat in jail, her mental condition so bad she couldn’t even be brought to the courtroom, attorney Ken Cirisan expressed frustration with California’s state hospitals.

The client, Adella Hernandez, 49, was due for a mental health progress report from Patton State Hospital. But even though Hernandez was found mentally incompetent to stand trial on Oct. 7, 2013, more than two months later, she hadn’t even been sent to Patton for her court-ordered treatment.

“My client is languishing in jail,” an exasperated Cirisan told the judge, suggesting the hospital be held in contempt of court. Since so much time had passed — Hernandez had already served 142 days on a probation violation — Superior Court Judge Michael Duffy had no choice but to release her without treatment.

And just days after her release, Hernandez was back in jail, this time charged with assault with a deadly weapon. Once again her attorney is trying to get her to Patton. But with a backlog at state mental hospitals, Hernandez will likely languish in jail again, probably in solitary confinement.

“It’s inhumane to not get treated,” said Matt Guerrero, another defense attorney, who is on the San Luis Obispo County Criminal Justice Mental Health Task Force. “Just to leave somebody in a psychotic state with total sensory deprivation, it’s terrible.”

Widespread problem

Nationwide, mentally incompetent defendants ordered to receive treatment are getting stuck in county jails because there aren’t enough hospital beds available. That has caused a burden on jails, which aren’t designed to treat the mentally ill, it has caused delays in the criminal justice process, and it has created a revolving door for defendants like Hernandez.

“That’s not an unusual situation,” said Capt. Michelle Cole, at the San Luis Obispo Sheriff’s Office, who has seen several inmates with mental illnesses return to the jail. “If they don’t get the help they need, they’re going to come back into the system.”

The problem is particularly notable for defendants declared incompetent to stand trial. Competent defendants understand the charges against them and can assist their attorneys in their defense. If an attorney doesn’t think a client can do that, he declares a doubt in court. At that point, psychiatric evaluations are ordered. If a judge deems the defendant incompetent, the case is suspended, and the defendant is ordered to undergo treatment until competency is restored.

Local impact

In 2013, attorneys formally expressed a doubt in 33 cases in San Luis Obispo County.

While those defendants faced charges ranging from sexual assault to public intoxication, past incompetency cases have included Sunni Jackson, recently declared not guilty by reason of insanity for killing her mother, and Annette Hale, charged with abducting a 4-year-old boy in Atascadero.

On Friday, there were 12 inmates at the County Jail who were waiting to be sent to a state hospital after being declared incompetent, Cole said. While the jail does provide therapy and medication through the county’s Behavioral Health Department — there are four full-time mental health employees and two psychiatric doctors that provide 10 hours of clinical services a week — treatment at the jail is voluntary. And those with mental illness often refuse treatment.

“So it makes it difficult for families when their loved ones are refusing services,” said Henry Herrera, family services forensic liaison for Transitions Mental Health Association, which works to find options for those with mental illness in and out of jail.

Last year, the jail’s mental health staff recorded 7,000 contacts with inmates, compared to 6,700 in 2012. Still, the mental health staff at the jail pales compared to a state hospital, which makes it difficult to handle mentally ill inmates who become violent.

If an inmate is deemed a threat to himself or others, Cole said, he might be put in isolation — as the 12 incompetent inmates currently are. While that might be the safest option for everyone, it could make a mentally ill inmate’s fragile condition worse.

“If you get somebody who’s suffering from psychosis, and they’re in isolation, it actually aggravates the psychosis,” Guerrero said.

After Andrew Downs was declared not guilty by reason of insanity for murdering two sisters on Christmas Day 2010, it took several months for him to be delivered to Patton State Hospital due to a lack of space. Meanwhile, he remained in isolation at the County Jail, where he drank urine from a toilet.

“That was the first time we realized there was a problem,” said Guerrero, who defended Downs.

A long wait

While Downs has since been sent to a hospital, many more are waiting to get into the competency program before their criminal cases can resume.

In California, according to the state’s Legislative Analyst’s Office (LAO), roughly 300 people each month are waiting to get into the competency restoration programs at state hospitals.

While the courts have recommended defendants be transferred to the hospitals within 35 days, the average wait time to get into Atascadero State Hospital was 53 days in 2010, while it took 87 days on average to get to Patton.

Part of the problem is that some state hospitals have not been able to fill key vacancies despite accelerated recruitment efforts, according to the LAO. As a result, many of those mentally ill remain in jails.

“The availability of beds for (incompetent defendants) fluctuates with demand,” wrote Ken Paglia, a spokesperson for the Department of Hospitals, in an email. “At any given time, a temporary shortage in bed space can occur.”

Currently the Los Angeles County Jail is the largest mental health facility in the nation. But it can’t provide the same services as a state hospital.

“Being in jail is not good for anybody, whether you have a mental illness or not,” Herrera said.

While getting arrested often represents rock bottom for the mentally ill, getting declared incompetent to stand trial can represent a starting point for treatment, he added.

“I tell families, if your loved one happens to break the law, call me right away because now we’ve got leverage to try to convince them they need help,” said Herrera, who works with families of mentally ill defendants, defense attorneys and jail staff.

If sent to a state hospital, defendants will get needed therapy and medication. Once at ASH, incompetent defendants spend an average of 90 days in treatment before they are deemed competent.

“When we get someone competent, they finally emerge from that storm cloud that’s hanging over their heads,” Herrera said. “If we’re going to help anyone to not repeat, then we have to deal with the issue of, OK, why did you end up in jail?”

A local example

In court, Deputy District Attorney Andy Baird was concerned about Hernandez’s release, telling the judge she’s dangerous due to her mental health history.

Hernandez, whose previous convictions include spousal abuse and battery on a police officer, has a long history of mental health issues and physical assaults, according to a probation department report.

However, Judge Michael Duffy said, the 142 days she’s been in jail was roughly the amount of time she would have served if convicted of her probation violation, which stemmed from earlier charges of public intoxication and trespassing. So her case had to be dismissed.

“I believe the court has no viable option,” Baird agreed.

Eight days later, San Luis Obispo police responded to a call regarding a “crazy lady” breaking out windows in a trailer park. When they arrived, a resident in the park — a friend of Hernandez — said the two had argued in her trailer before Hernandez started busting her windows. When she confronted Hernandez, Hernandez allegedly screamed at her and hit her in the face with a pink porcelain bowl, causing lacerations to her cheeks and nose.

Hernandez is now charged with assault with a deadly weapon, and her attorney has again declared a doubt to her competency, meaning more mental health evaluations will be prepared. Meanwhile, she languishes in jail again.

Seeking a solution

With state hospitals backlogged, one solution has surfaced. In 2010, San Bernardino County was selected for a pilot program in which the jail contracts with a private provider to deliver the same mental health services incompetent inmates would get at a state hospital.

Once declared incompetent, defendants no longer have to wait for a bed to open at a state hospital — instead they are immediately sent to the jail’s Restoration of Competency Program. The program, according to the Legislative Analyst’s Office, has reduced the amount of time needed to restore inmates to competency and has saved money.

The state pays $278 per day to treat inmates in San Bernardino County compared to $450 per day at state hospitals. Riverside County has since created its own ROC program, and other counties are interested in pursuing it as well, Paglia said.

While there are currently no plans for that to happen in San Luis Obispo County, Herrera thinks it would work.

“That would be a good alternative,” Herrera said, noting that the defendants could remain close to family during treatment. But, he added, “Everything revolves around money.”

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