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Home / Articles / News / News /  Lost in the criminal justice system
. . . .
Wednesday, Aug 27, 2014

Lost in the criminal justice system

If you’re mentally ill, good luck finding your way

By Kelly Davis
Sarah Sarah hopes the right treatment program will help her son Kyle stay out of jail.
- Photo by Kelly Davis

Sarah’s standing in the hallway of the San Diego Central Courthouse, hoping to see her son Kyle as deputies lead groups of inmates, shackled together, to holding cells behind the courtrooms.

She spots Kyle and yells his name, and he gives her a quick, nervous smile. He looks younger than his 24 years and much different from the Kyle she’d seen in jail last fall, before he was sent to a state hospital for treatment. Diagnosed with bipolar disorder and schizophrenia, he’d refused to take his medication. He’d lost weight and let his dark hair and beard grow long. When Sarah visited him, his wrists and ankles were shackled. “Despondent,” is how she described him. For nearly six months, he was held in administrative segregation at San Diego’s Central Jail—for his own protection, Sarah was told.

“Five-and-a-half months. No medication, in his own cell in isolation,” she says. “All he did was sleep.”

Last June, Kyle was charged with assault and resisting arrest after he verbally threatened a police officer in El Cajon. He was living in a nearby board-and-care facility and, the week prior, had walked away from a psychiatric hospital. Since he was 18, he’s been in and out of psychiatric facilities and jail, his mom says.

Six months after his arrest, Kyle was declared incompetent to stand trial and ordered to Patton, California’s largest state hospital, in San Bernardino County. But he’d end up spending another 70 days in custody before a bed opened up. Patton’s licensed for 1,287 patients, but currently holds 1,523—the state has waived its cap through September 2020. Statewide, more than 200 inmates who’ve been declared incompetent to stand trial (IST) are waiting in jail—on average, 83.5 days, according to the Department of State Hospitals—for a bed to open up.

“Jails are for punishment; they’re not for therapy,” says Rob, whose son Mike is being held in administrative segregation at the Central Jail while he awaits transfer to Atascadero State Hospital. The backlog isn’t new, Rob says. Six years ago, his son waited five months for a bed at Patton.

****

People are committed to state hospitals for a number of reasons—they’ve been found guilty by reason of insanity or, like Mike, they’ve been deemed mentally disordered offenders, meaning that although they’ve served their sentence, they’re considered a threat to public safety and are kept at a state hospital until evaluators clear them for release. Folks are declared incompetent to stand trial (IST) when their mental illness has rendered them incapable of assisting in their own defense. It’s this population that’s putting the most strain on the state hospital system.

In 2012, the state’s Legislative Analyst’s Office (LAO) called attention to the backlog of IST inmates, warning that “the state faces significant legal risks” if something wasn’t done to reduce wait times. The report referenced a 2010 appeals-court ruling in the case of a mentally ill man who waited in jail for 84 days before being sent to Patton. California law requires state hospitals to report on an IST patient’s progress “within 90 days of a person being deemed incompetent,” the ruling notes.

“When a defendant arrives at Patton on day 84 of the 90-day period, there is no meaningful opportunity for the defendant to make progress toward recovery of mental competence,” the judges wrote, “let alone for the medical director of the hospital to make a written report to the court concerning such progress by the defendant.”

Sometimes declaring someone IST is the only way to get that person treated. Defense attorneys are increasingly using competency proceedings to get help for clients, many of whom have cycled through the criminal-justice system without any intervention.

“Over the last several years, we’ve been paying a lot more attention to how we help these people stay out of the system,” says Deputy Public Defender Mel Epley. “It’s all about trying to identify why the person’s in the system in the first place, treat that issue or address it so they won’t have to come back.”

It used to be that if a defendant knew the role of each person in a courtroom—prosecutor, defense attorney, judge—and understood his right to a jury trial, the person was considered competent, Epley says.

“These are things you can question somebody about, and even if they’re mentally ill, after awhile, by the sheer repetition of talking to them, they’re going to get it right at some point.”

Now the key question is whether someone can assist in his own defense and understand the consequences of his plea.

“If they’re mentally ill and they have a delusion of what reality is,” Epley says, “then answering those other questions isn’t going to get at the delusions. It’s just a repetition of what the process is.”

According to numbers provided by the San Diego Superior Court, between July 1, 2009, and June 30, 2010, there were 346 competency hearings. Four year later, that number had more than doubled to 745. A court spokesperson said the results of those hearings aren’t tracked, so it’s impossible to know how many of those cases resulting in an incompetency finding. Nor does the court track how many ISTs committed misdemeanors and how many committed felonies—misdemeanor ISTs are, in almost all cases, treated in the jail’s psychiatric security unit. But, a look the number of felony ISTs that the Sheriff’s Department has transported to state hospitals shows the extent to which the population’s grown. In 2010, 65 IST inmates were transferred to a state hospital. As of two weeks ago, the department had transported almost double that number—122—so far this year.

San Diego’s Central Jail has only 30 psychiatric beds. Meanwhile, the county jail system’s waiting list to be transferred to a state hospital has reached as high as 70. Daniel Pena, captain of the Central Jail, says they’re looking at how to better care for inmates whose transfer is delayed.

“We’re having to look at other options, including expanding to other housing units where we’re going to have to step up the level of treatment in some areas that we haven’t had to do before,” he says. “It’s a growing population, and it’s going to be challenging for anyone who’s operating jails and prisons.”

****

Kyle did well at Patton, his mom says: “He had proper care. He was given proper meds. He had group therapy daily. He was around people who had similar issues.”

But his time there was bookended by jail stays. When a person’s declared incompetent to stand trial, court proceedings are suspended. Sarah feared that when Kyle was released from Patton in late June and returned to jail, he’d stop taking his medication and his condition would deteriorate.

There should be other options for mentally ill offenders that don’t include jail, says Suzanna Gee, associate managing attorney with Disability Rights California. The law that governs competency proceedings allows for certain felony ISTs— those who’ve committed low-level, nonviolent offenses—to be placed in a court-approved outpatient treatment program instead of a state hospital.

“What’s happening in practice is that people aren’t going to these community programs,” Gee says. “They’re only going to the state hospital primarily.”

A court spokesperson confirmed that San Diego County has no conditional-release treatment programs for felony ISTs.

Such programs are less expensive than putting someone in a state hospital and would, ideally, get a person into treatment faster.

“The statute on placement isn’t being really applied fully,” Gee says. “You’re harming the client, you’re costing the state and you’re getting, really, an inefficient system.”

The LAO report highlighted a program in San Bernardino County, where felony ISTs are treated in jail, as one way to alleviate hospital wait times and prevent malingering—when patients fake symptoms to avoid being sent back to jail.

Ralph Montaño, spokesperson for the Department of State Hospitals, says there’s a similar program—with 20 beds, like San Bernardino’s program—in Riverside County, and there are plans to start programs in other counties to help reduce wait times.

But Gee doesn’t think this is the way to go.

“If they want to pilot another program, not in the jail. If they can pilot something in the community and see how that goes, I think it’s a start.”

Unfortunately, it’s not something anyone’s really advocating for, Gee says: “I think it’s unfounded fear about violence, and stigma.”

****


The LAO report estimates that California would need to spend $200 million annually to clear the state-hospital backlog. But, that’s money wasted if there aren’t the right resources to keep a person stable once he gets out of jail. There are community programs for mentally ill offenders, says Connie Magana, supervisor of the Public Defender’s Mental Health Unit, but they sometimes exclude the people who most need help.

“Sometimes the court orders them to try to seek case management, but some individuals have told me that they’ve gone to try to get case management… and they’ve been denied; they’ve been told, ‘You don’t meet our criteria, so we can’t help you,’” she says.

CityBeat talked to several parents of mentally ill adult children who described how easy it is for someone to fall deeper and deeper into a system that’s ill-equipped to handle them.

Like Kyle, Rob’s son Mike also did well at Patton. He was prescribed Zyprexa, a medication used to treat schizophrenia.

“It was a night-and-day change,” Rob says.

After two months at Patton, Mike was sent back to jail, where he was denied Zyprexa and put on a different drug, Seroquel. Shortly after he was released from jail, he was re-arrested for assault.

“Nobody was hurt,” Rob says. He’s not making excuses for his son, he adds, but in this case, he doesn’t think the punishment fit the crime. “He was on the wrong medication. He was in crisis,” Rob says. “He was in really bad shape.”

Rob says he was led to believe that if Mike pleaded guilty, he’d be sent back to Patton. Instead, he was sent to prison. There, he was put on a high dose of Seroquel, “so they could make him compliant, so there’s no problems,” Rob says.

Because his crimes were tied to mental illness, before Mike was released from prison, he was evaluated by state psychiatrists and deemed a mentally disordered offender. Instead of being released, he was transferred to Atascadero, where he’s been since 2010. Once a year, he’s allowed to challenge his commitment, but to do so, he’s transported to San Diego for a hearing, meaning he loses his bed at Atascadero. For an early August hearing—where he was ordered to remain in Atascadero for another year—he was brought back in June.

“He is still in the San Diego County jail, in a cell 23 hours a day by himself—no therapy, no groups, waiting for a ride and a bed back at Atascadero,” Rob says.

Anita Fisher’s son, who suffers from schizophrenia, self-medicated with crack cocaine and ended up with a mandatory prison sentence. That started a cycle: He’d be released to parole, violate his parole and end up back in prison.

Fisher is the education director for the local branch of the National Alliance on Mental Illness (NAMI) and leads a monthly Criminal Justice Family Support Group. She says she’s an advocate for Laura’s Law—she emphasized that she wasn’t speaking on behalf of NAMI in saying this. Laura’s Law says that a mentally ill person who refuses treatment, is a threat to himself or others and has a history of hospitalization and/ or incarceration can be court-ordered into treatment. Involuntary treatment is controversial, and only four California counties have implemented the law.

“Had I been able to get my son into something involuntarily, he wouldn’t have had all those trips to jail and prison and been on the streets, homeless,” Fisher says.

In May, she went to pick up her son from jail.

“Sometimes you’ve got to sit there for hours,” she says. “You don’t know when they’re coming out.” As she watched inmates being released, she started keeping count of those who were clearly mentally ill.

“Now, this person needs help,” she’d tell herself. “He’ll be back here probably in 24 hours.”

****

Kyle was in court this week to find out if he’d be accepted into a program, Exodus, as part of his probation. Sarah had been told by Kyle’s public defender that to be accepted, he’d need to show some level of awareness of his illness and that he wanted to get better.

“He has to be cognizant that there’s a correlation between taking medication: ‘My life is smoother and it’s better; things are more positive,’” she says. “‘I don’t take my meds and things are bad, I get arrested, I’m found naked under a bush.’ He has to draw the distinction on some level.”

Sarah stood outside the courtroom with Bob, Kyle’s father. To them, this seems like Kyle’s last chance. His parents have struggled to help him, but having Kyle live with either of them isn’t an option; he’s disruptive in a way that only a parent of a seriously mentally ill child could understand.

Bob worries that if Kyle’s not accepted into Exodus, he’ll end up back on the street, then back in jail, where he doesn’t always get along with other inmates.

“If you don’t have someone making him take the medication—.” Bob trails off. “Right now, I don’t think there’s an answer in the system.”

The hearing was supposed to start at 9:30 a.m., but a bailiff comes out to explain it’s been delayed while attorneys discuss a case. Sarah wonders if it’s Kyle they’re talking about. She’d been in contact with Magana, the Mental Health Unit supervisor, and even sent a letter to Public Defender Henry Coker, pleading for help finding a program for Kyle.

At a little after 10 a.m., a deputy public defender calls Sarah’s name and pulls her aside. Kyle’s been denied a slot at Exodus, she explains, but they’ve found him another program, one that will provide the kind of intensive care he needs. The next morning, a representative from the program will pick Kyle up from jail. As part of his probation, he’ll have to stay in the program for a full year and come back to court each month to update a judge on his progress.

“If my son would just come home,” Sarah says. “I don’t think there would be anything better in life.”

Some of the people interviewed for this story asked that last names, or entire names, not be used, for privacy reasons. 

Email kellyd@sdcitybeat.com or follow her on Twitter at @citybeatkelly.




 
 
 
 
 
 
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