Criminal defendants who may be mentally ill and stuck in Washington state jails may finally get some relief they are long overdue. A federal judge has ruled the state must buckle down and adhere to a law that was already on the books requiring jail inmates receive mental competency exams within seven days. U.S. District Court Judge Marsha Pechman’s injunction included a 25-page order in which a monitor will oversee her ruling to correct abuses that have taken place for years. “Washington is violating the constitutional rights of some of its most vulnerable citizens,” Pechman wrote when issuing the order in April. “Our jails are not suitable places for the mentally ill to be warehoused while they wait for services. Jails are not hospitals.” She gave the state nine months to add staff and hospital beds to fix the issue. Washington state law had already required mental competency evaluations within seven days for defendants charged with a crime who might be mentally incompetent to stand trial. However, in recent years, the wait time routinely grew to weeks and commonly months because of shortages in the state’s Department of Social and Health Services (DSHS). In March, the state Legislature enacted a 14-day time frame and earmarked $27 million for additional evaluators and beds. It now must revisit the issue. The DSHS says Pechman’s ruling creates even more problems and will hurt the very people the court seeks to help. “The experience in other states shows the seven-day limit produces significantly higher false indications of mental illness, wasting precious resources and potentially stigmatizing clients,” Jane Beyer, DSHS assistant secretary, said in a statement. “The judge has also required that the seven-day clock starts from the time of the court order, even when evaluators do not yet have a complete record. We are fearful this will also undermine the quality of evaluations. Our major concern with the seven-day decision is that it could result in inferior care of our clients. “The nationally recognized best practice model sets a range of seven to 21 days for evaluations and the onset of services. The Legislature’s choice fits squarely within that time frame. The national average is 31 days.”
More Time in Lockup
Those perceived to be mentally ill are now spending as much as three times more time in incarceration than those who don’t need an evaluation. Some would spend as much as 23 hours in solitary confinement to either protect them from other inmates or from themselves—although the same cells are used to punish inmates in the general population. Jail time, and particularly isolation, adds to the deterioration of mental health, which is in conflict with the very thing the state is trying to do — restore competency. In the month leading up to the trial, one inmate committed suicide while awaiting evaluation. The Washington chapter of the American Civil Liberties Union filed the suit on behalf of mentally ill inmates, notably Cassie Cordell Trueblood. Supporters praised the decision, saying constitutional and basic human rights aren’t subject to available funds, that the state’s excuses will no longer be tolerated. Civil liberty advocates aren’t the only ones upset with a system that appears broken. A Joint Legislative Audit and Review Committee found that from 2001 to 2012, offenders referred for competency evaluations increased 82 percent, to 2,764; in 2014, there were 2,866. Meanwhile, and particularly since the recession, funding for the state’s psychiatric hospitals decreased, thereby limiting the number of beds available for evaluation and restoration. There are wait lists for the beds in the forensics wards at the state’s two psychiatric hospitals. The $27-million budget increase will add 45 beds, for a total of 315, at Western State Hospital, and 15 beds for a total of 110, at Eastern State Hospital. Yet Washington may not be able to simply throw money at the problem: The DSHS competes with private industry and other government mental health providers for trained forensic evaluators in the face of a nationwide shortage of psychiatrists.
Dealing with potentially mentally incompetent criminal defendants is not a check-in, check-out proposition, so it’s easy to understand how a backlog could develop. Defendants who fail the “competency to stand trial” evaluations—which typically include interviews of 30 to 90 minutes—are ordered to mental health treatment to restore competency, but must often wait in jail for a bed at one of the state’s two adult psychiatric hospitals for “competency restoration services,” which include provision of psychiatric medications, education about court proceedings and supportive therapies. After treatment, the defendant is again evaluated. The competent are returned to stand trial. Restoration attempts can take place up to a year for those charged with the most serious crimes; if unable to be restored to competency, the charges are dismissed and the individual may be evaluated for civil commitment under the involuntary treatment act.
The aggressive ruling by Pechman was meant to send a strong message to the state about the way authorities deal with the mentally ill. A month after the ruling, Beyer told Promises Behavioral Health that she still isn’t sure how successful the DSHS will be in meeting the new standard. An appeal is being considered. Regardless, she said stakeholders will convene in the coming weeks “to begin identifying short- and long-term strategies, including identifying sites and models for alternatives to state hospitals for competency restoration services.” Ultimately, care should become quicker and, hopefully, better. “Again, it will take a great deal of work to get there, not only by DSHS, but by our partners in the criminal justice system, local governments and others,” Beyer said. “We don’t control the whole system.”