A month after a judge declared him mentally incompetent to stand trial, alleged strangler Adam Cary still hadn’t been admitted to a state hospital for his treatment. So his attorney, Jim Royer, filed a motion to have the Department of State Hospitals held in contempt of court.
“It doesn’t help him to stay in jail,” Royer said.
While incompetent defendants waiting to get into state hospitals already face long waiting lists, Cary’s case was further complicated because his alleged crime had occurred at Atascadero State Hospital — the closest place for him to go for competency restoration. So he lingered in jail until Royer’s motion forced the department of hospitals to find a bed.
Because of a backlog of mentally incompetent defendants, increasingly more inmates like Cary find themselves in legal limbo, their criminal cases suspended until they get treatment — which they can’t get.
In criminal court, a defendant has to be able to understand the charges against him and assist his own defense. If he can’t do that due to mental illness, his attorney declares a doubt to his competency, and a hearing is held based on psychiatric evaluations. If a judge rules a defendant incompetent, the defendant is ordered to a state hospital for treatment.
The defendant’s criminal case is put on hold until he is deemed competent to stand trial.
Mentally ill patients in competency programs receive medications. But they are also trained to understand criminal procedure, said Ken Paglia, a spokesperson for the state’s department of hospitals.
“Each patient receives instruction as to what he is charged with, plea options, elements of a plea bargain, roles of officers of the court, the role of evidence in a trial, and constitutional protections,” Paglia wrote in an email.
Once the patient understands that, he moves on to a mock trial exercise where staff members act as judge, jury, prosecutor and defense attorney in an effort to assess the patient’s ability to work with counsel.
“After successful completion of mock trial, the patient is then evaluated to confirm he is competent to stand trial,” Paglia wrote. “After evaluation, if there is concurrence that a patient is competent, a forensic report is sent to the court, identifying that the patient is competent and ready to be discharged to his county of commitment where he can stand trial.”
After Cary was declared incompetent to stand trial in April, Michael Kington, the community program director for a conditional release program in San Luis Obispo County, recommended that Cary be treated further at ASH, according to court records. ASH has treated incompetent patients since 1984.
But the Department of State Hospitals didn’t want to send Cary back to the hospital where Cary allegedly strangled roommate Kevin Turner, 53, in May 2014.
Still, by May 8, exactly one month after he had been ordered to a state hospital for treatment, Cary remained in jail.
A growing problem
While mental health experts stress that the jail environment is not conducive to getting better, mentally incompetent patients statewide are spending more time in jail, even after they’ve been ordered for treatment.
As of May 25, Paglia wrote, the ASH competency program had a waiting list of 27 incompetent patients. Over the past year, he said, admissions pending at ASH ranged from 15 to 58 patients, with an average of 41 waiting to get in at any given time.
As of May 28, he said, there were 172 incompetent patients in the ASH program, and patients were staying around 155 days on average.
There is no time limit on the competency program unless the patient is there longer than his criminal sentence would be. Stephen Deflaun, accused of murdering two people at a Morro Bay campground, was declared incompetent in 2002, and he has never been brought to trial.
During the last full fiscal year ending June 30, 2014, the ASH competency program treated 521 patients. As of April 30, it had already treated 529 patients so far this fiscal year. The Tribune reported in 2014 that the average wait to get into ASH’s treatment program was 53 days.
While the competency programs are busy — Cary has added to the workload, having been declared incompetent numerous times in the past decade — staffing at state hospitals has been problematic, according to the state’s Legislative Analyst Office, despite accelerated recruitment efforts. That has not only raised questions about treatment but also safety. A wrongful death suit filed by the victim’s family in the Cary suit claimed understaffing allowed the 6-foot-8 Cary to have access to the much smaller Turner even though Cary had shown signs of dangerous behavior.
“The department is actively working to recruit more psychiatrists and will continue to provide a safe and therapeutic environment for our staff and patients,” said Ken August, another state hospitals spokesperson, in April.
The lack of space isn’t limited to ASH. In April, the Los Angeles Times reported that 376 inmates were typically waiting for beds in the six state hospitals that treat mentally ill defendants.
That backlog delays the criminal justice process and costs taxpayers money.
To speed the process, the state has advocated that counties treat more mentally incompetent inmates at jails — something that is currently done in Riverside and San Bernardino counties.
“These two facilities have contracted with Liberty Healthcare to provide restoration of competency treatment,” wrote Tony Cipolla, a spokesperson for the San Luis Obispo County Sheriff’s Department, in an email. “Meaning, California Department of State Hospitals contracts with Liberty Healthcare to establish programs at the county jail.”
While the Liberty patients receive the same treatment as incompetent patients in state hospitals, Cipolla said, Liberty requires a minimum number of inmates to be in the program, and San Luis Obispo County does not meet that minimum.
As of Tuesday, Cipolla said, there were 12 incompetent inmates waiting for state hospital beds.
The average wait for those inmates, Cipolla added, is about 6 to 8 weeks.
The courts have recommended that defendants be transferred to hospitals within 35 days of an incompetency ruling.
Given Cary’s charges and the fact that he was previously at ASH, an attorney for the department of hospitals notified the court that Cary posed a safety and security risk and thus required a high-security environment.
On May 21 — 43 days after Cary was declared incompetent — Superior Court Judge Roger Picquet ordered the defendant to the state hospital’s psychiatric program at Salinas Valley State Prison.