Incompetent defendants may wait decades pretrial with no rights, options

Locked up 20 years pretrial, convicted of nothing, for being mentally ill? You better believe it.

At the Austin Statesman, Eric Dexheimer has a pair of excellent stories on competency restoration, one of which describes a mentally ill defendant - never convicted - held more than 20 years pretrial because he cannot be kept competent long enough to stand trial ("Defendants fill, linger in state's mental health facilities," May 27). Stunning. (Dexheimer also has a sidebar describing the competency restoration process for the uninitiated.) The main story opens:

In 1990, then-26-year-old Brad Reinke was waiting at his parents' Northwest Austin home when they returned from church. As he attacked his father with a knife, his mother fought him off with a baseball bat, court records say.

Found to be too mentally ill to stand trial, Reinke was sent to Vernon State Hospital, one of Texas' taxpayer-funded psychiatric hospitals, to undergo "competency restoration," in which anti-psychotic medication and therapy are used to stabilize a criminal defendant enough to stand trial.

On average, the process takes about three months. More than 20 years later, however, Reinke is still a hospital patient.

So is James McMeans, accused of a 1999 fatal stabbing at a South Austin gas station. Psychiatric workers at Kerrville State Hospital have restored him to mental competency three times, most recently last year, only to have him regress each time he returned to jail to await trial. He has remained a hospital resident for more than a dozen years.

Within Texas' network of mental health facilities, the 10 taxpayer-supported state psychiatric hospitals (one is for juveniles only) are intended to be used primarily as a short-term stop for patients and defendants in need of intensive temporary treatment before moving on to less restrictive facilities or back into the community.

But an analysis of patient data shows that increasingly, that's not the case. In recent years, the 2,400 beds in the facilities have been stacking up with patients staying much longer — some for decades.

Regular readers will recall that Travis County District Judge Orlinda Naranjo recently ordered state mental hospitals to accept even competency restoration patients (in state hospital parlance, "forensic commitments") within three weeks of a judge's order, the result of years of litigation (that fwiw was initially launched in response to a Grits commenter) over long waiting lists that left mentally ill defendants lingering in county jails for months and months pretrial. Dexheimer's story provides context for that litigation, showing how forensic commitments are increasingly coming to dominate state mental hospitals, squeezing out non-criminal cases.

In 2001, forensic patients made up 15 percent of those in the hospitals. Today, they are 40 percent, and the numbers are growing. The shift is significant because psychiatric criminal defendants tend to stay much longer. Department of State Health Services statistics show the average time patients stay in a state hospital climbed about 30 percent in the past five years. ...

Because they remain clinically unwell or dangerous, insanity defense patients are stacking up, too. Four years ago, the state psychiatric hospitals housed 90. Today, there are more than 200 — growing at a rate of 22 percent each year.

Equally concerning, the expansion of forensic commitments has led to excessive incarceration of mentally ill defendants pretrial, sometimes for longer, even than the law allows, just because folks get lost in a byzantine system whose actors have few options available to them and few incentives for leniency:

Advocates say some long-term patients might not belong at all. Last September, Disability Rights Texas, a watchdog organization federally authorized to investigate state mental health facilities, won release of a man who'd been arrested for unauthorized use of a motor vehicle and sent to a state hospital to have his competency restored. The law says such patients can stay no longer than the maximum criminal penalty they're facing — two years, in this case. By last year, the man had been a state hospital resident for closer to eight, said Beth Mitchell, the organization's attorney.

Since March, reviewers for Austin Travis County Integral Care, which coordinates the area's mental health services, have identified 13 patients — including one who'd been in the hospital for 5½ years — being kept at the psychiatric facilities without sufficient clinical reason.

Together, the long-termers have effectively reduced the hospitals' capacity more and more every year. In 2004, 1 in every 7 beds was taken by a patient who'd been there more than a year. Today, it's 1 in 4.

Texas has under-invested in infrastructure for indigent mental health treatment to the point where, increasingly, mentally ill folk must commit a crime to receive inpatient treatment. Dexheimer points to outpatient programs funded by the Legislature as pilots aimed at restoring competency for misdemeanants, but their slight scope barely amounts only to an acknowledgement of the problem, not a near-term solution.

In Grits' view, there are several interrelated pieces that need to happen on competency restoration at different levels of government to get at the root of the problem. First, Texas must invest more in state mental-hospital beds and expand community-based treatment services outside of (read: prior to) the criminal justice system. Larger cities need supportive housing for chronic mentally ill "frequent flyers" who take up a disproportionate amount of jail and court resources. And finally, local jails need to be more proactive in their approach instead of waiting for courts and state hospitals to address defendants' competency.

Harris County has arguably the best front-end approach to dealing with competency restoration among large Texas jurisdictions, IMO. As Grits wrote in February, Harris 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. Usually 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.)

Defendants deemed incompetent can't just plead guilty and serve out their sentence. They've been declared incapable of making their own decisions and their fates lie in the hands of the state. Dexheimer's report shows how the state tends to make those decisions based on its own self interest, not that of the individuals whose rights the process has stripped away.

See prior, related Grits posts:

• Showdown brewing between Travis judge, state health agency on competency restoration
• BSG (Broke State Goverment) seeking forensic mental health beds
• 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