Austin Criminal Attorney: BSG (broke state government) seeking forensic mental health beds

Found in the want ads in the Houston Chronicle:

UT Health Science Center is hiring for positions including a psychiatrist, psychologists, nurses, hospital aides (psyc techs), social workers, nurse practitioners, physicians assistants, recreational therapists and a chaplain for two units they are opening in March 2012.

1. Adult Forensic Detention Unit at The University of Texas Harris County Psychiatric Center (UTHCPC): The forensic unit will treat mentally ill individuals with medicine, psychiatric and psychological treatment who have committed a criminal offense and are in jail awaiting trial.

Didn't know that was happening, but perhaps it will contribute to short-term relief with the shortage of "forensic beds" at state hospitals designated for competency restoration. Relatedly, at the Dallas News Somer Ingram had a story published February 6 discussing Judge Orlinda Naranjo's yet-to-be finalized ruling (pdf) on timely admission of inmates needing competency restoration into state hospitals, discussed on Grits here and here. The story ("State may be forced to find room for mentally ill inmates," behind paywall) opened:

The state could be scrambling to make room in medical facilities for hundreds of mentally incompetent prisoners after a judge ordered that they can no longer be housed long-term in county jails.

State District Judge Orlinda Naranjo of Austin is expected to soon finalize her ruling, requiring that inmates whose mental illness prohibits them from standing trial be moved to state psychiatric hospitals within 21 days of receiving the order to be committed. The ruling will force the already-underfunded Department of State Health Services to find room and money for these inmates.

The inmates have typically been ordered to get treatment at a state hospital to restore competency and be able to stand trial. But because there is a perpetual wait for the 800 hospital beds set aside for patients from jails, inmates are put on a “Clearinghouse List” and confined to county jails until space opens up in a state hospital.

Prisoners spent about six months in jail waiting for a bed in a psychiatric facility over the past two years, their mental states deteriorating even further without proper psychiatric care. In Dallas County, 77 inmates are waiting to be admitted to a state hospital. All have been waiting longer than the 21 days the new rules would require.

“Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time prior to being admitted to a state mental health facility or residential health facility violates the incompetent detainees’ due process rights as guaranteed by the Texas Constitution,” Naranjo wrote last month, ruling against the state in a civil case.

Naranjo’s ruling comes as something of a wakeup call for the state, which has underfunded state hospitals for years and made jails de facto care facilities for the mentally ill. But finding space in the hospitals remains a challenge.

Experts worry that changing the rules with no additional funding will mean a greater share of hospital slots dedicated as “forensic beds” for inmates, and no room in state hospitals for patients who don’t come from the jail system.

Department of State Health Services spokeswoman Carrie Williams said the department is already looking at how it would logistically comply with the final order but hasn’t gotten far yet.

“The problem is that forensic beds don’t turn over very quickly because the lengths of stays can be quite long,” Williams said. “We are evaluating right now what resources we have, what options are available and what changes we might need to make. We’ll of course have to look at space and staff as well.”

The attorney general, representing the state, has not yet decided whether to appeal the decision.

This court ruling has been years in the making and is potentially a game changer, but it may also turn out to be a temporary "check" in a much larger chess match. How will the state comply? What happens if they don't? Will appellate courts (or for that matter judges in other jurisdictions) back Naranjo's order, which has statewide implications? (For that matter, I'm unclear whether the Court of Criminal Appeals would get the case or the Texas Supreme Court - I suspect the latter.) How many new forensic beds are needed to comply with the terms of her order¿Quien sabe?

Though Naranjo enjoys the reputation in Austin as a moderately liberal judge, in many ways this is a classically small-government ruling, as borne out by the critical passage in which she concluded that "the nature and duration of commitment of the Incompetent Detainees bears no rational relationship to the purpose for which those detainees are committed and the relevant state interests do not outweigh the Incompetent Detainees' liberty interest." (Emphasis added.) In other words, the state can't hold an individual just out of convenience. Individuals' incarceration in the county jail must bear some "rational relationship to the purpose for which those detainees are committed." It's almost the kind of thing Barry Goldwater might have said.

Yet the state does have a rational interest in prosecuting crimes and ensuring, to the extent possible, that mentally ill defendants don't go on to harm others. But if the state wants to perform that function, says Naranjo, it must invest sufficiently in competency restoration infrastructure not to violate mentally ill defendants' constitutional rights, which in her view kick in after 21 days. Notably, the attorney for Disabilty Rights Texas, Beth Mitchell, told Grits she'd have preferred that the ruling require state hospitals to accept defendants immediately when courts declare them incompetent, which she said may typically happen within 7-8 days, but Judge Naranjo decided to give the state more leeway.

A table at the end of the Dallas News story shows Harris County with remarkably fewer inmates waiting long-term for beds than Dallas and some other large jurisdictions. Though unstated in the article, I'm told this is because of one simple, critical fact: Harris County doesn't wait to treat incompetent inmates until they're sent to the state hospital! They screen, identify and assess mentally ill defendants quite rapidly on the front end - as they're entering the jail. In particular, wherever possible, the jail identifies mentally ill inmates' medications through past jail records, prescription-drug databases, from their personal physicians, local clinics, etc., particularly for frequent flyers. Often the first steps toward competency restoration begin well before anyone issues a court order to that effect. The result: Harris has a lot fewer backlogged inmates awaiting competency restoration for long stretches, and those Harris sends to state hospitals tend to have shorter lengths of stay compared to other jurisdictions. (Harris, the state's largest county, had 9 inmates who'd waited longer than 60 days for a bed, according to the Dallas News, compared to 66 in Dallas who'd waited longer than 70 days.)

Replicating Harris' approach requires devoting resources on the front end, which was well worth it in Houston because they're such a carceral Goliath. Necessity so often finding itself the Mother of Invention, Harris County's example lights the path for other counties facing the same problem, which is basically all of them so long as state hospitals are full: Implement early screening and diagnosis soon after entry into the jail along with an aggressive effort to identify patients' current prescriptions to minimize lapses and help prevent further de-compensation.

Similarly, Nueces County recently launched a pilot, grant-funded Competency Restoration Program, the Caller-Times reported Jan. 27, under which inmates "would wait days, not weeks, to begin state-ordered treatment to be get competent for trial." That's exactly the approach counties should be taking, big and small. If Harris and Nueces can both do it, size isn't so much a factor as funding and want-to. (If counties update all their case dispositions, perhaps the Governor's Criminal Justice Division would look favorably on funding startup costs for such efforts.)

It's Grits perception, though, that most counties haven't been nearly that proactive in addressing the problem. They may have to be. The Lege couldn't even authorize new beds for at least a year, and even then I'm not sure where they'd find them. (Maybe there are contractors willing to run a secure facility, but the state could also have to build more beds to comply. Who knows?) Or the state and/or counties could invest in quicker processing on the front end like in Harris and Nueces to resolve the problem before defendants get to the state hospital.

It'll be fascinating to see how Judge Naranjo's court ruling plays out because, judicial good intentions aside, state hospitals can no more manufacture extra hospital beds to comply with this mandate than the miser can squeeze coins from a stone. And there are so many unanswered questions: If they comply by reducing the number of non-forensic beds, what would be the unintended consequences? Might the Governor's Criminal Justice Division or some other source (heaven knows who) step up with grants to plug the gap? For that matter, given current budget circumstances, what happens if May 2013 comes and goes and the Lege hasn't ponied up money to resolve the situation? Most critically, what leverage will Naranjo have to enforce the order, and what modifications might be sought by the state? I'm proud of the judge for issuing that ruling, but for the moment it raises more questions than it answers.

MORE: From the Texas Tribune.

See prior, related Grits posts:

Austin Criminal Attorney

Kamis, 09 Februari 2012

BSG (broke state government) seeking forensic mental health beds

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