Grits first discussed the problem here, and wrote here how Advocacy Inc. got involved in the issue as a result of that post.
The Startlegram correctly frames the issue as a new unfunded demand by the state on county budgets:
Mental Health Mental Retardation of Tarrant County could lose as much as $4 million this year because the county has already exceeded the $10.5 million set aside by the state for treatment of inmates at state hospitals. And developing a local program to handle a backlog of criminal commitments could cost local taxpayers millions of dollars more.
"This looks like another unfunded mandate by the state," Tarrant County Commissioner Marti VanRavenswaay said. "And if we pick up a state's responsibility, they will never take it back."
That's true, and we're talking about some of the most expensive inmates to house and care for in the entire criminal justice system. What's more, the lack of appropriate facilities to house mentally incompetent inmates leaves a constitutional cloud hovering over the arrangement that could come back to bite counties in a number of ways:
Judges, prosecutors and defense laywers agree, however, that holding inmates indefinitely raises questions about civil rights violations and could be legal grounds to obtain an inmate's release.
"Legally, we cannot leave someone in county custody when they are not getting the treatment the judge ordered," said Tarrant County Assistant District Attorney Sylvia Mandel, an appellate lawyer assigned to the county's mental health diversion program. "I don't think we can warehouse them indefinitely."
The backlog could also lead to inmates' release from jail without ever standing trial, because defendants earn credit for time served. Defendants cannot be held longer than the possible maximum sentence for the crime for which they are charged.
"Misdemeanor cases could never be tried because an inmate could remain in custody beyond the terms of their possible sentence," Mandel said.
The delays would also prolong justice for victims and could violate a defendant's right to a speedy trial.
It could also pose problems for prosecutors and defense lawyers.
"When you have long delays in the trial process, witnesses sometimes get lost, and it is more difficult to try a case because witnesses begin forgetting details of the case," Mandel said.
So the crisis denies mentally incompetent inmates appropriate care and the right to a speedy trial, or in some cases any trial. Not only does that raise constitutional concerns, but it's a huge policy blunder -- Texas already dramatically underfunds indigent mental health services, preferring to use the criminal justice system to deal with the problem than paying for more psychiatric beds. Presently about 16% of Texas' prison population suffers from serious mental illness. That's penny wise and pound foolish - it'd be cheaper and safer for everybody to treat mental health problems in the community rather than wait until patients commit serious crimes and wind up in prison. Then the state must pay. Similarly, if a mentally incompetent defendant gets help after a misdemeanor charge, maybe they wouldn't later begin committing felonies.
The only short-term solution besides warehousing mentally incompetent defendants indefinitely in county jails would be for Governor Rick Perry to add this topic to the "call" for the upcoming special legislative session this spring. The state health department, reports the Startlegram, "has requested emergency funding from the Texas Legislative Budget Board, asking for an additional $34 million in state funds and $7 million from other sources. The money would add 100 civil and 98 criminal beds to the state hospital system."
This isn't just a budget problem, though: The crisis could actually harm public safety if mentally incompetent inmates must be released without ever having received mental health treatment. In that sense, the decision not to adequately care for these inmates is another example how, if our leaders aren't careful, arresting ever-more people to show we're "tuff on crime" can actually be tough on the taxpayers, and even make us less safe.