presented by - National Disability Rights Network
Transcription
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