Reality check on mental health funding lacking at lege hearing

Dr. Floyd Jennings, who is special resource counsel to the Mental Health Division of the Harris County Public Defender, posted an account on Karen Franklin's In the News blog of his first experience giving invited testimony to the House Criminal Jurisprudence Committee last month. Grits happened to be in the room when Dr. Jennings gave his testimony, and at the time I didn't have a chance to comment on an odd and telling discussion he referenced in his account:

I learned that the lucidity of the argument may have little consequence. I was upbraided for failing to provide the legislature with specific means of cost savings through transfer of mental health services to the "private sector", although there is no private sector entity with the duty to provide mental health services to the chronically mentally ill on a statewide basis. And even if existing, no private sector entity has the resources to provide such. The tone of questions made it plain that legislators would prefer to have government provide all the goods and services that governments rightly provide, but at no cost, or with private sector funding.

Rep. Wayne Christian was the main legislator pushing Jennings for a "private sector" solution for mentally ill defendants in the justice system. It was at times an almost abusrdist discussion: Around the room, looks of befuddlement flashed across most faces in the audience as the same questions ran through everyone's mind: What "private sector" services is Christian talking about? Does he understand Jennings is discussing mentally ill homeless people cycling in and out of the jail? Who believes there is a "private sector" solution for that? The private sector needs customers to be economically viable, and the only customer in sight who might pay for treatment of indigent, mentally ill defendants is government. I can understand Dr. Jennings frustration; the exchange was flat out surreal.

I get that Rep. Christian doesn't want to spend more money, but that particular discussion needed a serious reality check. Since he and others on the committee at times didn't seem to grasp Jennings' key points, I'll close by reiterating them here in his own words:

the charge of the committee was to address whether alternative sentencing for mentally ill persons would be desirable. I argued simply that no changes in sentencing were needed -- because it would be difficult to craft, impossible to implement as it would trade on definitions of applicability, and moreover, courts already have the option of considering a defendant's state of mind as either mitigating or exculpating.

On the other hand, diversion strategies for the lower-level misdemeanor offender could have enormous cost benefits and not compromise public safety. As well, pre-trial jail psychiatric services could be provided at modest direct cost through the use of physician extenders, and provide just that opportunity for stabilization necessary to enable rapid disposition of the matter, shortening any period of confinement. Finally, I argued that opportunities for post-disposition placement tiered to the acuity of the person would dramatically reduce recidivism.

Jennings was sensibly suggesting counties and the Lege spend pennies to save dollars. Christian, by contrast, would have the state save pennies today, even if it means the dollars required tomorrow are compounded. Ironically, Jennings' is actually the more fiscally conservative view.

'Life, With Dementia'

Here's a notable New York Times feature and editorial on some of the unique healthcare problems facing the growing cadre of senior-citizen inmates in American prisons with dementia, a phenomenon resulting from long prison sentences meted out over the last several decades:

• Dementia Behind Bars
• The Vanishing Mind: Life, With Dementia

Here's a summary tidbit from the main story:

Dementia in prison is an underreported but fast-growing phenomenon, one that many prisons are desperately unprepared to handle. It is an unforeseen consequence of get-tough-on-crime policies — long sentences that have created a large population of aging prisoners. About 10 percent of the 1.6 million inmates in America’s prisons are serving life sentences; another 11 percent are serving over 20 years.

And more older people are being sent to prison. In 2010, 9,560 people 55 and older were sentenced, more than twice as many as in 1995. In that same period, inmates 55 and older almost quadrupled, to nearly 125,000, a Human Rights Watch report found.

The editorial puts it even more starkly, echoing themes regular Grits readers will recognize: "According to a report from Human Rights Watch, in 2010 roughly 125,000 of the nation’s 1.5 million inmates were 55 years of age and over. This represented a 282 percent increase between 1995 and 2010, compared with a 42 percent increase in the overall inmate population. If the elderly inmate population keeps growing at the current rate, as is likely, the prison system could soon find itself overwhelmed with chronic medical needs."

Most of the main story is about a California program that trains inmates with good behavior records to provide care for inmates with dementia, Alzheimer's, or other such disabilities. But Texas and other high-incarceration states face similar dynamics. Older prisoners are both one of the fastest growing segments of the inmate population and among the most costly, mainly because of high healthcare expenses.

Just as society increasingly uses prisons and jails in lieu of mental hospitals, they're beginning to also replace nursing home beds for a small but rapidly growing class of elderly prisoners. Over the next five to ten years Grits expects this to become one of the central challenges of modern prison management, not to mention a source of increasingly poignant moral conundrums for the legislature and the parole board. There are no easy answers for the questions that arise when the end of life nears, either for families when tasked with such decisions or the state when acting in loco parentis.

Competency restoration: Clinical vs. forensic assessments

One often hears folks in the system say that, though it's lamentable to use jails as a substitute for mental health treatment, at least sick people get services there. Seldom discussed, though, is that the process begins with a concerted effort to prove that mentally ill defendants are not, in fact, sick so they can be shown competent to stand trial. A presentation this morning at the Texas Criminal Justice Integrity Unit's mental health seminar by Dr. Bryan Scott - who assesses defendants' competency for Bexar County - identified some of the key distinctions between his forensic role and that of a clinical diagnostician, both in his discussion and his own demeanor and attitude toward the work.

Scott emphasized the radical differences between the role of a forensic mental health examiner vs. clinical psychologist psychiatrist. In a clinical assessment, he would typically run down a checklist of symptoms: Do you hear voices, etc.? In a forensic setting, he said, he doesn't interrogate symptoms, assuming malingerers would cop to all of them. but instead lets defendants bring symptoms to him. And when they do, he views them very skeptically, with his main task - and to hear him tell it the most "fun" part of the job - that of rooting out alleged malingerers (I say "alleged" because in one prominent example he insisted a man was faking though a jury had overruled him).

For example, instead of listing possible real symptoms, Scott will often suggest phony symptoms (e.g., are symptoms worse when you lie down, stand up, urinate, etc.?) to trip them up if they agree with items not associated with the possible illness. Or he'd ask a series of 50/50 questions ("Does a cow have three legs or four? Is a quarter worth 25 cents or a dollar.? Many mentally ill people, he pointed out, will answer those questions just fine. If they get most wrong, not 50/50 as you might if guessing, he assumes they're likely malingering. So that line of questioning is aimed at tripping up malingerers and merely wasting the time of the actually sick, and is not something you'd see in a clinical assessment.

In some cases, things that might cause a clinical diagnostician to think a mental illness more likely, said Dr. Scott, may mitigate against him believing a defendant. For example, mental illness (particularly bipolar and schizophrenia) are to some extent inheritable, so a family history normally implies it's more likely a patient will have the same problem. In the case of defendants, though, Scott said if their mother suffered from schizophrenia, a malingerer might have more intimate knowledge of symptoms and be able to mimic them. For this reason, he considers family history both "a rule-in and a rule-out" criteria.

Another key difference, said Scott: Forensic examiners determining competency do not have a doctor-patient relationship, though he does tell defendants "I'm here to help you." But his role is "not therapeutic," said Scott, who said it's a "totally different role than seeing a patient." He's not there to get them treatment. There is "no confidentiality," and he lets them know that up front. Indeed, he said, often defense attorneys will sit in on the interviews. That alone is a huge difference between the mental health treatment in jail and out: Is the client the client, or is the court the client?

Scott emphasized he wasn't assessing mental illness per se but legal competency to stand trial, declaring "Just because someone is delusional doesn't mean they're incompetent."

Dr. Scott's gleeful tone as he recounted "tricks of the trade" for identifying (or at least accusing) malingerers was difficult to suppress, and mostly he didn't really try. I don't say that to criticize him, at least too harshly (though at times it did seem a bit much). Malingering happens and somebody has to try to root it out. I certainly don't envy the task. Problem is, everybody including the legitimately ill, who are processed through the system in large numbers, get treated as potential malingerers on the front end, where possible diagnoses aren't probed so much to identify problems as to find excuses to ignore them. What a strange, almost perverse aspect of the system.

CCA Integrity Unit hosts capitol seminar on mental health

Today and tomorrow the Court of Criminal Appeals' Criminal Justice Integrity Unit is holding a two-day seminar on mental health at the capitol. (See a flyer [pdf] for the event.) If you haven't registered (I understand it's full), you can watch online beginning at 9 a.m. this morning; go to the Texas Senate's video page and scroll down to the "Court of Criminal Appeals Seminar," clicking on the Real Player icon to launch the broadcast once it begins. The first day focuses on substance abuse issues; tomorrow they'll cover competency restoration, involuntary commitment, and representing the mentally ill.

Townsend: 52% in Texas youth prisons suffer mental health problems

It's been frequently observed that adult jails and prisons are becoming society's de facto inpatient mental health facilities because they incarcerate so many offenders with serious mental illnesses. But if official data are to be believed, that may be even more true in the juvenile system. Reporting on a House Corrections Committee hearing yesterday on juvenile justice, AP says ("Mental health issues common among youth prisoners," Mar. 7) that:

More than half of the people in Texas' youth prisons have a moderate or high need for mental health care, and officials should improve their early intervention efforts to help those young people before they end up behind bars, the head of a new state agency told lawmakers Tuesday.

Cherie Townsend, executive director of the Texas Juvenile Justice Department, said more than 52 percent of teens and other youngsters held at the state's six juvenile detention facilities have been diagnosed with at least moderate mental health problems.

Including those with at least some kind of mental health care needs would make that tally much higher, she said.

"The numbers are increasing, and the percentages are increasing," Townsend told members of the Texas House Corrections Committee, referring to the number of juvenile detainees who have mental health problems and their proportion of the state's total youth population at detention facilities.

Not everybody, though, agreed that Texas youth prisons are morphing into insane asylums. One legislator suggested perhaps overdiagnosis played a role:

Rep. Charles Perry suggested authorities might be classifying too many young people as having mental health problems.

"I'm a little nervous about the discussion," said Perry, a Lubbock Republican, "because I know kids that act out that have no mental health issues, and just act out because they act out."

I don't doubt that mentally ill youth disproportionately end up in youth prisons and it wouldn't surprise me if the ratio is greater than in the adult system. But I also agree with Rep. Perry that youth in the juvenile justice system may be diagnosed with mental illnesses too frequently, and sometimes inappropriately, in hope that their behavior issues can be medicated away - or as so-called "chemical restraint." Hell, it's well known that some schools and psychiatrists promote psychoactive drugs at relatively young ages to counter children's behavioral problems, even for non-delinquents. Foster children are also reportedly overmedicated. So it's unsurprising that youth who've worked their way up to outright criminal behavior have racked up enough diagnoses and prescriptions over the years to appear on paper as though they're suffering from a mental illness. In some cases, that's surely true. But particularly with some common diagnoses, often the child's most fundamental problems stem from other issues like, say,  a crappy home life, absent or ineffective parents, poverty, grief, etc..

Recently Grits mentioned the irony that the Texas Youth Commission had prescribed an off-label antipsychotic medication more than 3,000 times during the same period that the AG was suing the company for marketing the drug for use with juveniles without adequate FDA testing. Given such examples and the ubiquity of overmedicating children, I'm not sure it's appropriate to define the number of mentally ill youth by the number receiving some psychoactive drug. Those medication decisions in some instances may tell us more about our society's desire to fix every problem with a pill than they do about the real mental health needs of the majority of Texas youth prison inmates. (Grits can't back that assertion up with data off the top of my head, but that's my sense.)

That said, I also notice Townsend's 52% number is for youth with "at least moderate mental health problems." By contrast, when similar numbers are calculated in the adult system, they only include diagnoses for the three categories of severe mental illness prioritized by the Department of State Health Services - major depression, schizophrenia, and bipolar disorder. So, though 52% sounds like a much larger number than the 1/4 to 1/3 of offenders with mental illness in the adult system, those aren't apples-to-apples comparisons. Perhaps if you included those with "moderate" mental illness in the adult system, the number would rise above 50% as well. Last week the House Criminal Jurisprudence Committee heard testimony that the adult justice system often ignores treatable mental health problems like anxiety disorders that can have as significant a crime-causing effect as the "big three" diagnoses.

What do you think? Are there disproportionately that many more mentally ill inmates in youth prisons than adult ones? Is the statistic misleading because of over-diagnosis and over-prescription? Or are youth inmates being treated at appropriate levels - dealing with "moderate" instead of only "severe" mental illness - and it's the adult system that's underdiagnosed, because the state doesn't document any but the most extreme mental ailments?

Here's the link if you want to watch the 4+ hour hearing for yourself.

TYC prescribed drug while Attorney General sued over its off-label use with children

Here's an ironic story from a Dallas TV station that speaks as much to the overmedication of youth in the juvenile justice system as to flaws in Medicaid billing. It opens:

The state won a $158 million settlement last month from a pharmaceutical company that the Texas attorney general said promoted an antipsychotic drug for uses not yet approved by federal regulators.

Attorney General Greg Abbott said Johnson & Johnson marketed Risperdal as the drug of choice for children and the elderly for schizophrenia and dementia even though the Food and Drug Administration had not approved its use in children or the elderly.

Yet while the state was suing J&J, the Texas Youth Commission, one of the state's largest purchasers of pharmaceuticals, prescribed it nearly 3,000 times to youth in the Texas prison system, according to financial documents uncovered by NBC 5.

The state's lawsuit, which was filed in 2006, said the state excessively paid pharmacies that dispensed prescriptions for Medicaid patients for a range of unapproved uses.

'The Harris County Jail: The Largest Mental Health Provider in Texas'

Via press release, Harris County Sheriff Adrian Garcia tomorrow morning will address a subject I think few Texans are aware of: That the Harris County Jail is "The Largest Mental Health Provider in Texas." Media are invited to the event.

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:

• Grits commenter played role initiating lawsuit over timely competency restoration
• Judge: State mental hospitals must take incompetent inmates within 21 days
• 'Neither punished nor treated, just jailed'
• Growth in forensic commitments exacerbates shortage of state mental hospital beds
• Judge orders state hospital to take more competency restoration patients
• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

Grits commenter played role initiating lawsuit over timely competency restoration

The SA Express News had an editorial today praising a district court ruling last week requiring state mental hospitals to timely accept defendants for "competency restoration" who've been deemed incompetent to stand trial by the courts. Here's a notable excerpt:

In San Antonio, criminal defendants in need of a bed in a state psychiatric facility are routinely spending months in the Bexar County jail waiting for transfer.

Late last week, there were 17 inmates at the Bexar County jail awaiting transfer to a state hospital bed. Some of them have been in the county jail for almost 300 days.

In what many hail as a major court victory for the mentally ill in Texas, state District Judge Orlinda Naranjo has ordered the Department of State Health Services to transfer defendants who have been ruled incompetent to stand trial due to mental illness to a state psychiatric hospital within 21 days of receiving a judge's order, the Austin American Statesman reported.

That is indeed great news for advocates and the families of defendants with mental health problems who have fought long and hard against the criminalization of the mentally ill. Mental health patients need treatment and should not be held in local lockups. On average, mentally incompetent prisoners are spending up to six months in jail before being transferred to a state hospital.

The state attorney general's office has not yet decided if it will appeal the judge's ruling.

Complying with the judge's order will be a major undertaking. Over the last two years, there has been a waiting list of about 400 inmates for the 800 available state hospital beds.

I had forgotten about the backstory to this lawsuit when Grits wrote about it on Friday, but as it turns out this litigation actually originated - believe it or not - from a comment posted on this blog. As recounted in this 2006 post, the group Advocacy Inc. (which has now changed its name to Disability Rights Texas) first learned about the issue from  a Grits post, filing the lawsuit after investigating the case of a commenter who turned out to be an attorney with an incompetent client. Of course, Beth Mitchell and the lawyers at Disability Rights Texas did all the work, and the situation is so messed up that surely litigation was inevitable, anyway. But I'm pleased as punch at the small role this blog played in initiating the process.

MORE: From the Texas Observer.

Jury: No liability, this time, but improvements needed in MH treatment at Travis County Jail

In Travis County, a federal jury declared that, although jailers weren't the "proximate" cause of Rachel Jackson's death, but there were areas where the county's operation of its jail needs to improve. Reported Steven Kreytak at the Austin Statesman:

A federal jury in Austin ruled [Friday] that neither the actions of Travis County officials nor of a former jail psychiatrist caused the death of a mentally ill woman found dead in her cell in 2008. But in an extraordinary move, the jury issued a statement calling on the county to improve the operations of its jails.

Following the jury’s decision in the lawsuit brought by the family of 21-year-old Rachel Jackson, who died while in “psych lockdown” in the Del Valle jail, U.S. District Judge Sam Sparks agreed that the panel could read a statement into the record.

“While we cannot find that Travis County proximately caused the death of Rachel Jackson,” the foreman said while standing in the jury box, “we do see significant opportunity for improvement in the processes, documentation and communication within the Travis County Correctional center.”

Outside the courthouse, jurors declined to elaborate on the statement to a reporter.

In too many cases, jails and prisons substitute for mental health beds, and that appears to be what happened here, with fatal results. Jail facilities weren't created for this purpose, jail staff for the most part aren't trained for it, and in general the criminalization of mental illness has become one of the darkest stains tainting modern society. I'll be interested to learn more about the concerns underlying jurors' public statement.

RELATED: From Patricia Kilday Hart: "Help mentally ill on outside so they don't end up inside."

Montgomery County seeks to reduce jail costs from mentally ill

The Conroe Courier yesterday had the story of a new mental health docket in Montgomery County (using "managed assigned counsel," whatever that means) created with a grant from the Texas Indigent Defense Commission aimed at diverting mentallly ill defendants from the jail:

In the past few days, the county launched its managed assigned counsel program for indigent defendants to focus on representing defendants with mental health issues. Sara Forlano, a former assistant county attorney for Montgomery County, recently left private practice to start up the new program.

The county also will have a mental health court docket to closely monitor probationers with serious mental illness, according to a press release. The programs were created through a $487,000 grant from the Texas Indigent Defense Commission, and supported by matching funds from the county.

The managed assigned counsel would work with an oversight board, whose members commissioners approved in February.

“The goal of this program is to lower the rate of recidivism,” Judge Cara Wood, of the 284th state District Court, stated in the release. “There is a high rate of recidivism among this population.”

Williamson County saved $3.2 million from 2005-08 through reduced jail bookings and necessary medications in jail, while Bexar County has saved “at least” an estimated $5 million annually through a similar program, Wood previously told commissioners.

“We anticipate the same or similar savings to our county,” she said in February. “And we never want to lose sight that it’s the right thing to do.”

Wood previously said approximately 600 indigent defendants would be served by the program.
The cost to house a mentally ill person in jail is about $55,000 per year, while the cost for a typical inmate is about $20,000 a year, she said.

Judge: State mental hospitals must take incompetent inmates within 21 days

Big news for mentally ill defendants in Texas declared incompetent to stand trial, not to mention the state agency that is supposed to provide "competency restoration" services, which presently has a months-long waiting list. After a court ruling this week, such long delays have been deemed unconstitutional and state mental hospitals have been ordered to begin taking inmates within 21 days after they've been declared incompetent. Reports Andrea Ball at the Austin Statesman ("Judge: Mentally incompetent inmates being kept in jail too long," Jan. 26):

Texas routinely violates the constitutional rights of mentally incompetent prisoners by forcing them to stay in jail for up to six months before moving them to psychiatric hospitals, a Travis County judge ruled this week.

State District Judge Orlinda Naranjo ruled that the Department of State Health Services must start moving "forensic commitments" — people accused of crimes who have been ruled incompetent to stand trial because of mental illness — to state psychiatric hospitals within 21 days of receiving a judge's order. Over the past two years , the average prisoner spent six months in jail waiting for a hospital bed, the ruling states.

"Keeping incompetent pretrial criminal defendants confined in county jail for unreasonable periods of time violates the incompetent detainees' due process rights as guaranteed by the Texas Constitution," Naranjo wrote.

A final order that would specifically lay out how the health department should proceed has not been issued, said Tom Kelley , spokesman for the attorney general's office. That agency has not decided whether it will appeal the case. Right now, there is no timetable for when the changes might be instituted.

 I contacted the attorney in the case from the group Disability Rights Texas, Beth Mitchell, who forwarded a copy of Judge Naranjo's ruling (uploaded here on Google Documents).

The lawsuit is aimed at the Commissioner of the Department of State Health Services, and while everyone thinks it'd be a good idea to reduce waiting times, the decision raises as many questions as it answers. The state cut state hospital funding and other mental health services this year, so seeking more resources in the near term will be like squeezing blood from a stone. Meanwhile, the average waiting list for beds in 2011 was about 300 people, wrote Judge Naranjo, with about 800 beds designated for "forensic" use.

How will DSHS comply with this ruling or will they balk and appeal? If they comply, will they contract for beds, and if so where, and with what money? Will they shift more beds to forensic purposes, and if so what impact will that have on other severely mentally ill folks with civil commitments (69% of state hospital patients, says the ruling)? Will the Legislative Budget Board authorize extra interim expenditures - as they did for the $5 million per month extra being spent on TDCJ healthcare - or will they let the system limp along, noncompliant, until the 2013 session? And what remedy might Judge Naranjo be able to muster to compel them to act sooner? ¿Quien sabe?

This is a welcome ruling, but it doesn't manufacture extra hospital beds out of thin air. Perhaps, though, it will set in motion a process that forces the Legislature to focus on the question much more seriously, and immediately, than they have in the past.

'Neither punished nor treated, just jailed'

At the Dallas News, columnist Steve Blow had a piece yesterday ("Mental illness leaves man trapped in county jail," Jan. 15) about a defendant named Reveau Skinner suffering from paranoid schizophrenia who was declared incompetent to stand trial but then waited in jail more than a year (so far) for a state hospital bed to open up to provide competecy restoration services (i.e., treatment to stabilize and medicate the iillness so the defendant is competent to participate in his own defense). Notes Blow:

If it were his heart or a hip that malfunctioned, he would undoubtedly be in treatment. But since it’s his brain that has the problem, he sits in jail month after month.

He should have been released a long time ago. But now he’s caught in the abyss between our criminal justice and mental health systems, neither being punished nor treated. Just jailed.

Earlier, a plea bargain was struck that would have released Skinner on probation - the victim in the domestic violence that sent him there incident had no desire to press charges. But after the court declared him incompetent, he couldn't even enter a guilty plea until after he'd been restored to competency, and that part of the process has stalled because of the shortage of state hospital beds.

The judge apologized to Skinner, but with that apology and a dollar he perhaps could get a soda at the commissary, but  not much else. IMO, after such a long time the judge should have flat-out ordered the state hospital to take this fellow, as judges in other jurisdictions have begun to do.

The Legislature this year gave with one hand on competency restoration while taking away with the other. They passed a statute for misdemeanor  defendants requiring their release if they don't get timely competency restoration, but for those charged with a felony, as in this case, there's no such safety valve. Meanwhile, they actually cut funding for state hospitals and mental health treatment, heightening scarcity and increasing time on waiting lists for competency restoration treatments.

This situation has lingered as long as your correspondent has been paying attention to county jail issues, and it's an area where underinvestment by the state heaps big problems and costs onto counties. To make matters worse, the only legislator who last session made the issue a real priority - Rep. Will Hartnett - is retiring from the Lege and will not return. Texas desperately needs somebody to take leadership on this question, but a betting man would likely wager the malaise and inaction will continue indefinitely, particularly with large budget shortfalls projected again in 2013. The situation is difficult for local officials but impossibly frustrating and cruel for the defendants themselves.

Indeed, in some ways the system seems more incompetent than the defendants. We understand that mental illness caused Skinner's incompetence, but what explains the incompetence of legislators, the governor, and the Department of State Health Services (which operates state mental hospitals) to cease this recurring nightmare? At least Mr. Skinner has a good excuse.

See prior, related Grits posts:

• Growth in forensic commitments exacerbates shortage of state mental hospital beds
• Judge orders state hospital to take more competency restoration patients
• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails

Growth in 'forensic' commitments exacerbate budget pressure on state mental hospitals

I ran across a "legislative primer" (pdf) published in February 2011 by Legislative Budget Board that I hadn't seen before which included this notable excerpt about the growth in demand for forensic beds at Texas state mental hospitals.

INCREASING FORENSIC POPULATION

According to DSHS, the forensic population in SMHs [state mental hospitals] is increasing. The role of the SMH in the treatment of forensic patients has expanded in recent years as some SMHs have experienced a significant increase in the number of forensic patients they serve. As described earlier a forensic patient is one who is admitted to a SMH by judicial order because they have been determined unfit to stand trial or found not guilty by reason of insanity. Some of the forensic patients who are in SMHs for competency restoration have been accused of minor crimes such as trespassing and misdemeanor assault. In fiscal year 2010, the total number of beds at SMHs was 2,461 including 1,558 civil beds and 903 forensic beds....

Forensic commitments generally involve longer lengths of stays in the SMHs. According to DSHS, the average length of stay for a non-forensic patient is less than 30 days compared to more than 30 days and often more than 90 days for forensic patients.

As of December 14, 2010 there were a total of 282 persons on waiting lists at SMHs for forensic beds. According to DSHS, the wait for a forensic bed can be as long as six months in jail for some nonviolent offenders needing inpatient services. These long wait periods can have a negative effect on the forensic patients’ mental conditions.

Longer wait times and longer lengths of stay at the SMHs before a forensic patient is declared competent may result in offenders waiting in jail longer for competency restoration than their sentence would be if they were convicted. It is likely that before some forensic patients have had their competency restored, they have already served the maximum amount of jail time for sometimes minor criminal offenses and are released without sufficient on-going mental health services or resources. This situation may contribute to re-offending and cycling back into the judicial system.

Further, driven largely by the increased number of forensic beds: "SMHs have seen an increase in the average lengths of patient stay. The average length of stay at discharge from SMHs for each fiscal year were 44.5 days in fiscal year 2006, 43.5 days in fiscal year 2007, 47.3 days in fiscal year 2008, 46.3 days in fiscal year 2009 and 51.5 days in fiscal year 2010. The average length of stay increased 15.7 percent when comparing fiscal year 2006 to fiscal year 2010."

Legislation approved last year (HB 2725 by Will Hartnett, who will be missed upon his retirement) ordered judges to count time on the waiting list for restoration services against defendants' ultimate sentence, making it easier to get charges dismissed when time spent incarcerated reaches the maximum sentence length. The bill gave jails a back-end release valve for less serious cases, but it didn't even pretend to resolve the underlying trend. As judges have lately begun to order forensic commitments regardless of waiting lists, the situation in the near term will only worsen.

Mental health, substance abuse, and the integrity of criminal justice

The next meeting of Court of Criminal Appeals Judge Barbara Hervey's Criminal Justice Integrity Unit has been set and addresses an issue I'm sure will interest many Grits readers beyond the innocence questions taken up by the CJIU so far. From the email:

THE TEXAS CRIMINAL JUSTICE INTEGRITY UNIT
 
In conjunction with:
Senator John Carona’s Office
Senator Rodney Ellis’s Office
Center for American and International Law
Texas Center for the Judiciary
Texas District & County Attorneys Association
Texas Criminal Defense Lawyers Association
 
Presents The
MENTAL HEALTH AND SUBSTANCE ABUSE SEMINAR

March 22-23, 2012
Texas State Capitol Auditorium (E1.004)
Tuition is FREE for All Registrants

 Be there or be square.

Budget cuts reduce mental-health staffing, services in Texas prisons

Kristi Nix at the Pasadena Citizen has a report ("Budget cuts mean fewer medical workers to treat Texas' mentally ill inmates," Dec. 13) on the effects of budget cuts on mental-health care at Texas prisons. The story opens:

State budget cuts handed down during the recent legislative session left the Texas Department of Criminal Justice with a dangerously-low $6.1 billion biennial budget, approximately $97 million less than last year’s funding levels. As a result, the mental health care system suffered layoffs along with the rest of the prison health care services. And although treatment and medications were left untouched, fewer medical workers are now left to treat mentally-ill inmates.

“We were given dollars for facility staff, dollars for pharmaceutical care and dollars for hospitals and some specialty care. The cuts that came to the facility staff included 24 mental health employees that were laid off,” said Dr. Owen Murray, Vice President of University of Texas Medical Branch Correctional Managed Health Care system.

Roughly 80 percent of Texas inmates are treated by UTMB, 14.2 percent of which have been diagnosed with serious mental illness. Owens said universal changes to mental health care services caused the number of mentally-ill offenders to increase significantly each year .

“Given the erosion of infrastructure we are seeing trends that are alarming,” he said. “We’re seeing natural fallout from that change, and that is more of the seriously mentally ill patients in the state are migrating into the correctional environment via jail or prison.”

And although the demand for services continued to increase, the mental heath care system suffered staffing reductions in 2011 as a result of state budget cuts. Last July, UTMB announced 50 unfilled positions would remain vacant and 130 health-care workers would be laid off, 24 of which were mental health care workers.

Staffing cuts in turn increased the inmate-to-staff ratio from 58 to one upward to 65 inmates for every mental health care worker.

See related Grits posts:

• Cuts to mental health may leave Texas jails housing more mentally ill
• Prison health costs from new UTMB deal obliterate claimed TDCJ budget savings
• 'State funding doesn't cover prisoner health care costs, officials say'
• UTMB announces layoffs, including 130 more at prisons
• TDCJ 'going California'? Prison health under-funded by nine figures

Legislative recommendations from LBB criminal-justice focus group, practitioner interviews

Scanning the Legislative Budget Board's new Adult and Juvenile Correctional Population Projections (pdf), in the "qualitative analysis" section, for which they queried more than 100 people in "Focus groups and interviews with criminal justice practitioners, juvenile justice practitioners, and adult offenders," I ran across these interesting summaries about what these insiders told LBB they think could/should be done to improve the justice system:

REGARDING CRIMINAL JUSTICE IN TEXAS, WHAT SHOULD BE THE EIGHTY-SECOND LEGISLATURE’S MOST IMPORTANT PRIORITIES?

Focus group and interview participants most consistently mentioned the need for investment in mental health resources of all types. Expanded inpatient and outpatient treatment, additional funding for specialized community supervision caseloads, increased reimbursement rates for mental health professionals, and additional state hospital capacity for competency restoration were all mentioned as important needs. Practitioners also agreed statutes and policies regarding DWI punishments need revision. Currently, DWI offenders have little incentive to obtain treatment through community supervision; offenders increasingly prefer short terms of incarceration in county jail. Possible solutions mentioned for this issue included offering deferred adjudication and potential early termination from community supervision for DWI offenders. Participants also voiced support for ending or reforming the Driver Responsibility Program (DRP), which provides significant financial burden on DWI (and other) offenders with seemingly little to no public safety enhancement. Other legislative recommendations included providing Community Supervision and Corrections Departments (CSCDs) additional flexibility in the use of state funding and providing offenders more incentives to choose community supervision over incarceration.  (emphasis added)

Equally important, questioning offenders:

WHAT CAN THE STATE OF TEXAS DO TO IMPROVE CRIMINAL JUSTICE AND KEEP OFFENDERS IN THE COMMUNITY AND OUT OF PRISON OR STATE JAIL?

Offenders most consistently mentioned three factors that would improve criminal justice and keep offenders in the community: employment opportunities and assistance, expanded access to substance abuse treatment, and additional educational opportunities. Offenders indicated employment opportunities and assistance as the most important need of these three responses.

Relatedly:

WHAT RESOURCES ARE NEEDED TO KEEP OFFENDERS IN THE COMMUNITY AND OUT OF PRISON OR STATE JAIL?

According to focus group and interview participants, mental health treatment options are the most needed resources to rehabilitate offenders in the community. Specifically mentioned resources included additional residential treatment, additional outpatient treatment, and increased reimbursement rates for mental health treatment providers. Along with mental health resources, practitioners indicated offenders need additional incentives to choose and/or remain on community supervision in lieu of incarceration. Participants also mentioned the need for additional resources specifically directed to meet the needs of female offenders.

Cuts to mental health may leave Texas jails warehousing more mentally ill

As was predicted even before the 82nd Texas Legislature began, large budget cuts to front-line mental health providers are handcuffing community-based treatment programs and shifting the burden (and cost) to local police and county jails. Reports Kevin Krause at the Dallas News (Nov. 27, behind paywall):

Dallas County officials and homeless advocates say millions of dollars in planned state cuts to mental health care will severely tax an already overburdened system and could lead to increases in the homeless and jail inmate populations.

Money for Dallas County and six neighboring counties that receive mental health services under a privatized system called NorthStar will see $10.7 million less in the 2012 fiscal year, officials said.

That includes about $5 million used to treat people who are sent to state hospitals such as the one in Terrell.

Dallas County commissioners recently sent a letter to the Legislature’s two top budget writers, explaining the situation and asking for help. Ron Stretcher, the county’s criminal justice director, said help was promised.

But it may not come soon enough.

“We’re asking to have that money restored,” said Stretcher, who acknowledged that that is unlikely. “We’ve had to start cutting.”

The first round of cuts will go into effect Dec. 1, he said.

Between 70 and 100 clinic-based caseworkers will be laid off, Stretcher said. And less inpatient psychiatric care will be contracted for at Green Oaks Hospital.

Also, an after-hours clinic operated by MetroCare Services for people who missed appointments or have trouble seeing doctors will close, he said.

And the county will have fewer case managers at housing projects for those who previously were homeless because of mental illness or substance abuse, Stretcher said.

Those cuts cover about half of the expected deficit, he said.

The same story, no doubt, could be localized nearly everywhere in the state. Of all the dunder-headed, penny-wise, pound-foolish decisions affecting criminal justice coming out of the 82nd Legislature, this one strongly competes for top billing (perhaps along with underfunding prison healthcare by $100 million without reducing their number of patients). At this point, ironically, for some folks on the lowest rungs of society, the only way to access mental-health services really is to commit a crime.

In particular, cutting "case managers at housing projects for those who previously were homeless because of mental illness or substance abuse" has real public-safety implications, taking some of the support out of "supportive housing" often aimed at frequent flyers from the jail. It also has implications for the county budgets, since most big-county jails are full and the mentally-ill often cost several times as much per day to incarcerate as the average prisoner.

As a practical matter, this year's cuts to community-based mental-health programming amounted to an all-but-overt decision to dump the costs onto local criminal-justice systems, particularly county jails, as a back-end, off-the-books substitute for community-based care. As a result, “'We’ve won the race to the bottom,' said Matt Roberts, president of Mental Health Association of Greater Dallas," to Kevin Krause.

The justice system has a lot of moving parts, some of which, as with community-based mental health services, aren't formally even part of the justice system. In too many cases, when somebody's homeless, mentally ill and stealing, trespassing, begging or sleeping where they oughtn't or even engaging in aggressive behavior, local authorities have few short-term solutions available to them besides the jailhouse. This year's cuts narrowed locals' options even further, by this account gutting community-based supports in Dallas that divert folks from jail and prevent crime.

Shifting costs to counties in a way that costs taxpayers even more isn't so much a conservative budgeting approach as it is an abdication of leadership. If your goal were to cut overall costs to the taxpayer and maintain or improve on the all-time low crime rate the state and nation enjoy at the moment - and if, heaven forbid, you didn't suffer from the myopia of focusing one funding stream but instead sought overall cost containment - a wiser strategy would be to boost resources for community-based alternatives to avoid using (more expensive) local jails as a primary mental-health provider whenever possible. Instead, the Lege de facto chose the most expensive and least practical approach to the problem, further transforming large wings of the jailhouse into mental health wards while cutting social services on the front end.

That's a helluva way to run a railroad.

Learning from others' mistakes: Solutions to jail overcrowding in Los Angeles

With California state prisons sending offenders back to counties to serve their time, the Golden State's largest jails - especially in Los Angeles - face a near-epic task of reducing incarceration levels to make room for more serious offenders. The Vera Institute has published a lengthy, detailed new report suggesting a variety of approaches, many of which will be familiar to Grits readers, most of which transfer quite well to jails in other large jurisdictions. From the executive summary (pdf):

Vera’s analysis has identified many points at which changes, big and small, could produce a measureable impact on the daily population of the jail. The analysis affirms that there is no one part of the system that owns the problem or the solution. Every agency—from law enforcement through the Probation Department—is touched by these findings and recommendations. The primary goals of the recommendations are:

1. To enable more defendants to be assessed and released at the earliest possible point with the support and supervision they may need to remain safely in the community and return to court as directed.
2. To keep people who come into contact with law enforcement because of mental illness, intoxication, or homelessness from becoming unnecessarily enmeshed in the criminal justice system.
3. To understand and improve the current system of probation supervision, violation, and revocation.
4. To improve the flow of communication and documents between agencies to expedite the processing of people and cases.
5. To highlight the need for everyone involved in the movement of cases to work for a just disposition at the earliest point.
6. To improve the efforts of every agency to maintain a data-keeping system that enhances both administrative efficiency and system-wide policymaking.
7. To improve the fair and efficient administration of justice at all points of the system, which can, in turn, reduce jail crowding.

Many observations in the report almost certainly apply in most Texas jails. For example: "In L.A. County, most detention decisions are not based on an informed assessment of whether an individual poses a danger to society or is likely to return to court. Instead, the decision is based on whether the arrestee has enough money to meet bail." The same could be said for most Texas counties.

Los Angeles County under-utilizes its pretrial services division, says the report, with most cases left to commercial bail bondsmen. Vera says this boosts failure to appear (FTA) rates because offenders not supervised by pretrial services don't receive adequate reminders to come to court. In many cases these were for petty offenses: "Vera staff observed arraignments for people who spent one or two nights in jail for FTA on charges of not paying a $1.50 metro fare." It costs $95-$140 per day to keep them locked up.

As in many Texas jurisdictions, police do not utilize "cite and release" authority as often as they could, and thousands are arrested for public intoxication are released hours after booking, wasting valuable resources.

One interesting suggestion was to "Create triage centers for patrol officers to bring people whose main reason for contact with law enforcement is being drunk, disorderly, or demonstrating signs of mental illness to allow evaluation, time to sober up or detox, or contact family without an immediate, and possibly unnecessary, booking into the jail."

Another problem is that plea bargains "tend to take place toward the very end of the process rather than at the beginning," boosting pretrial detention rates. The report includes several suggestions for processing cases more rapidly.

On the mental health front, "defendants receiving competency treatment are in custody much longer than if they were convicted of the charged offenses."  Vera suggests expanding "capacity to evaluate defendants with mental illness and place them in appropriate community-based treatment facilities."

In general, most larger Texas counties face virtually identical (if not as extreme) problems to those described in this document, and at least some of the recommendations would apply in every jurisdiction. Counties face these problems in an atomic, isolated environment, even though the same problems recur in other jurisdictions, meaning when solutions are identified in one place they usually don't translate to the next jail down the road. As is often the case in life, it's wiser whenever possible to learn from others' mistakes.

Attorney Andy Nolen: Permissible to breach confidentiality without penalty

via FlickrThere are situations where it is permissible to breach confidentiality without penalty. Such situations include but are not limited to: the professional is aware of or suspects the individual is acting illegally or the professional is aware or suspects the individual is harming others. "Others" may include people with whom the individual has a relationship, members of the general public or professionals with whom the individual has a service-provider/service-user relationship. Confidentiality may be breached when the professional is aware or suspects the individual has harmed himself or others, or may do so in the future. Confidentiality may also be breached if the professional is aware or suspects that a minor is being exploited or abused by others. Cases in which the professional is aware or suspects a competent adult is being exploited or abused by others constitutes an impermissible breach of confidentiality.

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