Few bills proposed at Lege to remedy statewide crisis in competency restoration

Steven Kreytak at the Austin Statesman has an excellent article on the little-discussed topic of competency restoration for mentally ill defendants, focusing on an extreme Austin case where a murder defendant, James McMeans, has spent 11.5 years in and out of state hospitals and jails, with the courts and the medical system unable to restore him to "competency," whatever that would mean for a previously homeless schizophrenic who thinks stabbing people is the only way to tell if they're androids. But the story also explored data regarding the more typical, workaday competency restoration cases that are clogging state mental hospitals and turning local jails into de facto mental asylums.

Last year, 120 people from Travis County were among the 1,151 defendants from across Texas ultimately committed to the state hospitals with the goal of having their competency restored, said Carrie Williams, a spokeswoman for the Department of State Health Services.

When they reach the state hospitals, the defendants receive therapy and instruction on the court system along with adjustments to their medication, Williams said. About 80 percent of the patients admitted to state hospitals for competency restoration are "restored," Williams said.

Many of those committed to state hospitals are charged with misdemeanors, said Jeanette Kinard, director of the Travis County Mental Health Public Defender Office. Often those defendants' cases must be dismissed because the time they are in jail plus the time they are in the hospital reaches the maximum sentence they could receive for their crimes, she said.

"Think about it," said Kinard, whose office handles only misdemeanors. "You are charged with a Class B or Class A misdemeanor; most people would be out within 30 days or something. If you are mentally ill, you get this extra punishment."

There are several options for defendants who do not become competent to stand trial.
Judges can order extended stays in a state hospital, with the commitment reviewed every year. In select cases —often less serious, nonviolent ones — prosecutors will dismiss charges. Sometimes they will then send that case to probate court to seek a civil commitment to a hospital.

But in serious cases such as McMeans', defendants sometimes remain in state hospitals with their charges pending for years. It costs $401 a day to keep someone in the state's limited number of mental health beds, so that is an option officials try to avoid.

As of March 1, there were 70 people found incompetent by Travis County judges, not yet restored and remaining in state hospitals. Those inmates have been hospitalized for an average of a year and a half.

Several different problems present themselves here: One is how to deal with people like McMeans who are insane, dangerous, and ultimately incompetent to stand trial, even after more than a decade of trying? And even when such folks can be rendered temporarily "competent," how should we handle people who are "clearly 'crazy,' but ... also 'sane' under Texas law"? Civil commitments, the insanity defense, alternatives to warehousing the mentally ill for years ... these are questions society continues to struggle with, and most of the answers for the past four decades have involved dumping the problems of the mentally ill onto the criminal justice system.

Beyond the crazy and dangerous - the McMeans of the world who everyone agrees must be somehow segregated from society, the question being how - perhaps the more pressing  mental-illness issue involves more common, workaday cases, particularly misdemeanors where there's absolutely no good reason for competency restoration efforts to take longer than the likely punishment upon conviction. County jails across the state are struggling with these questions. On that score, Kreytak's story provides Grits an excuse to look at some of Texas' filed legislation related to competency restoration issues. 

HB 748 by Rep. Jose Menendez and its companion, SB 1439 by Sen. Leticia Van de Putte, is a good bill that focuses on the problem of mentally incompetent misdemeanants. Under the law, misdemeanor defendants supposedly shouldn't spend more time awaiting competency restoration than the length of their sentence would be if convicted, but not all the time spent waiting counts toward that "maximum restoration period." The bill includes time spent in jail, mental institutions, and while on the waiting list for restoration services, effectively quickening the time before which defense attorneys can move to dismiss charges

HB 2725 by Rep. Will Hartnett and its companion, SB 931 by Sen. Tommy Williams, is another good bill containing similar language that would count time on the waiting list and speed up how soon misdemeanor defendants could get their cases dismissed. It also adds several new issues for judges to consider when determining competency, including developmental disabilities beyond mental retardation, any "other medical condition that significantly limits the defendant's cognitive functioning," and "whether the identified condition has lasted or is expected to last continuously for at least one year." It would, however, allow two thirty day extensions of the maximum restoration period instead of one, a measure that's also included in legislation filed by Sen. Joan Huffman. (Presumably that's an homage to the fact that competency restoration these days routinely takes longer than that maximum period.)

Menendez and Van de Putte also filed legislation to allow surrogate decisionmakers for jail inmates declared incompetent to stand trial.

That's pretty much it as far as bills filed on the topic. They're all, for the most part, positive steps as far as they go, but they're band aids applied to a hemorrhaging system. No legislation was filed to expand outpatient competency restoration efforts (though quite a few counties are pursuing those options out of their own self interest), nor do any of the bills fundamentally challenge the outdated methodology of using state hospitals instead of community-based services for routine competency restoration.

Of course, the elephant in the room on the subject is the budget: If mental health services are significantly slashed, as seems likely, these incremental fixes will look like a drop in the bucket. This blog routinely laments use of the criminal justice system to address social problems it's not designed to manage, and the criminalization of mental illness, where our jails and prisons now treat more sick people than the largest mental hospitals, is perhaps the best example of that unhappy trend.