presented by - National Disability Rights Network

Jail Delay:
Ensuring Timely
Receipt of
Competency Services
P R ESENTED BY: BOB F L E I SCHNER, C P R
E MI LY COOP E R , DRW ( WA P & A )
E R I N S U L L I VA N, DLC ( U TA H P & A )
ROADMAP: A national & overall perspective
followed by case examples in WA and UT
Photo depicts a large blue push pin inserted into a map
Competency to Stand Trial
Dusky v. US, 362 US 402 (1960), defendant is competent if
she has both:
◦ sufficient present ability to consult with lawyer with
reasonable degree of rational understanding
◦ a rational and factual understanding of proceeding
against her
Drope v. Missouri, 420 US 162 (1972)
◦ Is able to assist in defense
NDRN COMPETENCY WEBINAR MARCH 2016
The Process
1. Question of competency raised by party or the court
2. Court orders evaluation (usually commitment)
3. Evaluation completed and report filed
4. Defendant returned to court for competency hearing
5. If competent – trial
6. If not competent - commitment & restoration
7. If not competent, not restorable – commitment or
dropped charges/release
NDRN COMPETENCY WEBINAR MARCH 2016
Evaluation
• May be done anywhere
• By a mental health or other appropriate professional
• Usually in a mental health facility
• Usually bail is denied or revoked during evaluation
• Criminal case is stayed
• May be timelines for evaluation – often can be extended
NDRN COMPETENCY WEBINAR MARCH 2016
JAIL DELAY
States have consistently failed to provide
timely court ordered competency
services causing people with serious
mental health issues to be subjected to
prolonged detention in jail or state
hospitals.
Where Delays Can Happen
• Transfer from court/jail to place of evaluation
• Delays in evaluation
• Transfer back to court
• Inadequate evaluations and need for reevaluation
• Commitment process
• Restoration or non-restoration
• Delays in trial or dismissal of charges
NDRN COMPETENCY WEBINAR MARCH 2016
Implications of Delays
• Lengthy stays in jail
• Lengthy stays in mental health facilities
• Use of too many hospital beds for forensic clients
• Longer stays in metal heath hospitals than would be spent
in prison/jail if convicted
• No resolution of criminal case
o Jackson v. Indiana, 506 US 715 (1972)
NDRN COMPETENCY WEBINAR MARCH 2016
Common National Issues
• Proposals to use jails for evaluation and restoration
o See, Hinkle v. Scurr, 677 F.2d 667 (8th Cir. 1982)(location
of evaluation isn’t necessarily significant)
• Proposals for more and more secure MH hospital beds
• Stigmatization
NDRN COMPETENCY WEBINAR MARCH 2016
How Cases Come to the P&A
Photo depicts a screen shot of Geraldo Rivera’s expose of Willowbrook State School
P&A Activities
• Litigation to get defendants transferred from jail for
evaluation
• Using monitoring of jails and mental health facilities to
assess the evaluation and restoration processes
o Using access authority
• Working with public defenders
o Recognizing possible conflicting concerns
NDRN COMPETENCY WEBINAR MARCH 2016
P&A Access – Facilities
“…a P&A system shall have reasonable
unaccompanied access to facilities including all
areas which are used by residents, are accessible
to residents, and to programs and their residents
at reasonable times….” 42 C.F.R. § 51.42.
P&A Access – Photos & Videos
P&A Access is for the purpose of “Inspecting,
viewing and photographing all areas of the facility
which are used by residents or are accessible to
residents.” 42 CFR § 51.42(c)(3).
P&A Access - Presence
"Only by frequent personal contact with residents,
out of the presence of [institution] staff, can [a P&A]
effectively carry out its mission of pursuing
remedies to protect the rights of [institution]
residents and of providing the necessary
information to them."
Case Selection
Identifying the problem
◦ Long stays in jail?
◦ Lengthy stays in mental health hospitals?
◦ Over criminalization of behavior related to disability?
◦ Using forensic evaluations to secure mental health
services?
NDRN COMPETENCY WEBINAR MARCH 2016
Evaluating the Possible
Remedies
• More MH hospital beds
◦ More separate secure beds?
◦ Quicker evaluations to free up beds?
• Jail-based evaluations and restoration?
• Community evaluations?
• Court house evaluations?
• Fewer evaluations?
• More diversion programs?
◦ Mental health courts?
NDRN COMPETENCY WEBINAR MARCH 2016
National Landscape
Photo depicts a map of the US with red arrows pointing to WA, UT, and VA.
•
•
•
•
Evaluations occur in jails
Only doctors do evaluations
Not enough doctors
State hospitals lacked $$$
Trueblood v. DSHS, 101 F.Supp.3d 1010 (2015)
Photo depicts a map of Washington State
DRW, Access, & Waitlists
Photo depicts state hospital staff waiving to Emily Cooper during a monitoring visit.
Legal Framework
“Holding incapacitated criminal defendants in jail for
weeks or months violates their due process rights
because the nature and duration of their incarceration
bear no reasonable relation to the evaluative and
restorative purposes for which courts commit those
individuals.”
Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003)
DRW’s Factual Framework
JAIL DELAY MONITORING TOOL
CONSTITUENT FORM
CONFIDENTIAL, ATTORNEY WORK PRODUCT
Date of Monitoring:
DRW employee:
CONSTITUENT INFORMATION SECTION (to be filled during visit):
Constituent Name:
Jail:
Date of Birth:
Gender:
Date and Type of Court Order:
Age:
Ethnicity (Asian Black
Hispanic Caucasian
Native American Other
(specify)):
Date of Arrival at Jail:
Charges:
Public Defender and
phone number (ROI, Y
or N):
Parent or Next of Kin and
contact infromation (ROI, Y or
N):
Other Contact (ROI, Y or
N):
Housing Location:
Community Provider
(ROI, Y or N):
Screen shot depicts a monitoring tool used to gather facts from constituents.
Policy Solution?
Photo depicts the cover of DRW’s Lost and Forgotten Report with a jail cell covered
in tan rubber with a hole in the ground.
Preliminary Policy Outcomes in WA
2012 - SB 6492: Established 7 day Target
2013 - SB 5551: Established Panel of Outside Evaluators
2014 - State hired consultants
2012 – 2014 – State reports failure to meet 7 day target
Dozens of Contempt Findings
($200k in just two counties)
23
Photo depicts Amanda Cook, who died in jail while waiting for competency evaluation.
Trueblood Litigation Logistics
•
Standing – substitute counsel
•
Class Certification - stipulated
•
Co-Counsel – private firm, ACLU, & defense agency
•
Experts – clinical and systems
•
Pleading – 14th Amendment, removed ADA claims
•
Motions Practice – simplify expedited trial
•
Enforcement – back to access & monitoring
The Court Grants Our SJ Motion
“Because Defendants’ failure to provide timely services,
causing the prolonged incarceration of criminal defendants
waiting for court-ordered competency evaluation and
restoration, violates the substantive due process rights of those
detained, the Court GRANTS Plaintiffs’ motion for summary
judgment.”
Trueblood Trial: Plaintiffs’ Witnesses
1. Marilyn Roberts
2. Judy Snow
3. Dr. Danna Mauch
4. Dr. Terry Kupers
Photo depicts several images of Marilyn Roberts with her son KR, a named plaintiff
The State’s Case:
• No proof that all class members are harmed by prolonged
detention in jail or from spending prolonged periods of
time in jail;
• The State wants to build its forensic mental health system
on exceptions;
• No clear articulation of the government’s interest;
• Trust us – We will fix it on our own if you just leave us
alone.
Contempt In More Ways Than One
THE COURT: Counsel, there is a huge body of law about what
it is you do when you’ve been held in contempt. And, you
know, you telling doctors that they get to decide what’s best
rather than letting the legal system come up with the solution,
which the legal system will, ultimately, come up with a
solution, but that’s just not a viable way to run any
government. I have to say, I am just appalled that those
psychologists and psychiatrists think it’s okay to ignore the
court’s order.
Foreshadowing
THE COURT: So who is it that told you not to respond to
the court orders?
HOSPITAL MEDICAL DIRECTOR: I don’t know that anyone
said you should or should now. What counsel said was,
“I believe it is a defendable position. If someone where
– if there were are federal mandate that you need to fix
this as a problem, you, DSHS, need to fix this….
THE COURT: There might be any day now.
The Trueblood Decision
• Ordered all competency services within 7 days
• Restoration locations cannot sacrifice the therapeutic
environment of the state hospitals.
• Appointed a Court Monitor in light of contempt history
• Compliance by January 2, 2016
• Held: “The mentally ill are deserving of the protections of the
Constitution that our forefathers so carefully crafted. The
rights protected can be difficult and sometimes costly to
secure; however, the Constitution is a guarantee to all people,
and is not dependent upon a price tag.”
Using Social Media
32
JAIL DELAY IN UTAH
DLC v. State of Utah
Case No. 2:15-cv-00645-RJS
Judge Robert J. Shelby
Photo depicts a map of Utah
Utah State Hospital
How We Learned About the Issue
2008 Legislative Audit
• “Patients who need treatment in the forensic unit will
wait approximately 2-3 months for a bed to become
available.”
2014 Legislative Audit
• “Current waitlist is about 40 people.”
• “We recommend that USH consider the costs and benefits
of additional options to reduce the forensic waitlist
and/or the demand for forensic beds.”
Utah State Hospital’s Waitlist
• 100 beds at USH’s Forensic Facility
• Utah has experienced a 500% growth in demand for forensic
services since 1985
• Waitlist has doubled each year for the past 3 yrs
• FY13: 15
• FY14: 26
• FY15: 56
• Wait times have ↑ from 30 to
180 days in the past 3 yrs
• When we filed the lawsuit:
• > 50 on waitlist
• 5 had been waiting > 6 mos
• 7 had been waiting > 5 mos.
• 12 had been waiting > 3 mos.
Utah’s Statutory Framework
Utah Code 77-15-1, et seq.
Petition is filed . . . .
Court grants the petition . . .
Court orders an evaluation . . .
EVALUATIONS
- 2 mental health experts
- Initial report due w/in 30 days
- Can request an additional 30 days
RESTORATION
- No deadlines
- Examiner’s full report due “within 90 days of arrival . . . at the
treatment facility.
Practical Considerations
1. Fact gathering
2. Coalition building
3. Standing
4. Exhaustion
5. Obstructionist tactics
6. Pilot programs
Fact Gathering
• Request the waitlist
• Build a database
 Charges?
 Diagnosis?
 Date booked into jail?
 Date of evaluations?
 Date ordered to hospital?
• Visit inmates in jail
• Request records
• Attend competency hearings
• Reach out to family members
Sample Inmate Profile
Inmate Name
Case No. _______________________
Public defender: _______________
Diagnosis: _____________________
Notes: _________________________
76-6-106(2)(C) - CRIMINAL MISCHIEF:INTENTIONAL
Charge 1 DAMAGE,DEFACE,DESTROY PROPERTY
2nd Degree Felony
Charge 2
76-6-202 - BURGLARY
3rd Degree Felony
March 20, 2015
March 20, 2015
4/26/15:
Booked into Salt Lake Co. Jail
8/11/15:
Ltr from USH re: waitlist (staff will meet with her to
provide an assessment and orientation to the
competency restoration process in the jail while
she waits)
Ltr from USH (extension of hearing b/c still on waitlist)
Competency review hearing
8/3/15:
10/22/15:
1/26/15:
Ordered to USH
Coalition Building
• Co-counsel
• Public defenders
• Jail staff
• Sheriff
• Jail commander
• Medical + mental health staff
• Inmates’ family members
• Other P&As
Standing
1. P&A as Plaintiff (associational standing)
• Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)
• Circuit split
4th Cir. , 7th Cir., 9th Cir., 11th Cir
2nd Cir., 5th Cir., 8th Cir.
• Recent Delaware order
2. Class Plaintiffs
• How do you find them?
• How many do you need?
• Timing is everything
3. Next Friends, FRCP 17(c)
• Family member – parent, spouse, sibling
• Public defender
Exhaustion
-
This was the State of Utah’s leading argument
-
What exactly does PAIMI require?
• General Rule: “Prior to instituting any legal action in a Federal or State
court on
behalf of a[n] individual with mental illness, a [protection and advocacy
system] . . . shall exhaust in a timely manner all administrative remedies where
appropriate. 42 U.S.C. § 10807(a).
• Exception: if litigation is necessary to “prevent or eliminate imminent
serious harm to a[n] individual with mental illness.” 42 U.S.C. § 10807(b).
- What can/should you do?
• Attempt to resolve problems informally
• Submit comments to the legislature
• Participate in legislative hearings, if possible
• Reach out to your AG’s office before filing a complaint
Obstructionist Tactics
• Difficulties we’ve faced:
 Repeated extensions of time
 Access to facilities (expert site visit)
 Access to information (waitlist)
• Tips
 Gather as much information as you
can, early on
 Document everything
 File motions for expedited
discovery, if necessary
In-Jail Competency Pilot Programs
• Utah:
 $300K ongoing, began July ‘15
 “USH jail-based visits to begin
competency restoration”
 2 social workers dispatched
across the state
• Not authorized by law
• Not a substitute for inpatient
treatment at a state hospital
“The establishment of a
makeshift supplement such
as the CFS program does not
establish that the continued
incarceration of [incompetent
detainees] is rationally
related to the restoration of
their competency.”
– Judge Sarah S. Vance, US District Court Judge,
E.D. La.
From USH’s
19-page
“Forensic
Competency
Manual”
Case Progress
9/8/15
9/24/15
Complaint & Class Cert
Motion filed
Expert site visit to 3 county jails
[State filed 5 extensions of time to answer complaint]
10/30/15
2/2/16
State filed MTD
Hearing on State’s
MTD
 Motion for Expedited Discovery
 Motion to Amend Class Cert Motion
Helpful Case Law
 US Supreme Court
 Jackson v. Indiana, 406 U.S. 715 (1972)
 Bell v. Wolfish, 441 U.S. 520 (1979)
 Youngberg v. Romeo, 457 U.S. 307 (1982)
 US Courts of Appeals
 Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003)
 Trueblood, et al. v. WSDHS, et al., Case No. 15-35462 (9th Cir. , appeal filed 6/5/15)
 Federal District Courts
 Terry ex rel. Terry v. Hill, 232 F.Supp.2d 934 (E.D. Ar. 2002)
 Advocacy Ctr. for Elderly & Disabled. v. La. Dep’t. of Health and Hosps., 731 F.Supp.2d 603
(E.D. La. 2010)
 Trueblood, et al. v. WSDHS, et al., 2015 WL 1526548 (W.D. Wash. Apr. 2, 2015)
 State Courts
 Nevada Disability Adv. & Law Ctr., Inc. v. Brandenburg, No. 2:05-cv-00782-RCJ-RJJ
(Nevada) (settled ‘08)
 In re Freddy Mille, (182 Cal.App.4th 635 Mar. 3, 2010)
 Ctr. for Legal Advocacy v. Reggie Bicha (Case No. 11-cv-2285-MSK-BNB) (Colorado) (settled
‘12)
 Burnside v. Whitley, No. 2:13-cv-01102-MMD-GWF (Nevada) (settled ‘14)
 Lakey v. Taylor, 435 S.W.3d 309 (App. TX, July 7, 2014)
 Stiavetti v. Ahlind, et al., Case No. RG15-779731 (Cal., complaint filed 7/29/15)
Photo depicts several questions marks with one question mark in red.
Contact Information
Bob Fleischner
Center for Public Representation
Ph: (413) 587-6265
rfleischner@cpr-ma.org
Emily Cooper
Disability Rights Washington
Ph: (206) 324-1521 / (800) 562-2702
emilyc@dr-a.org
Erin Sullivan
Disability Law Center
Ph: (801) 363-1347
esullivan@disabilitylawcenter.org