Arrestees who are mentally incompetent to stand trial are supposed to be sent for treatment. But thousands are being warehoused in jails for months without a conviction.





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Updated at 6:00 p.m. ET on December 6, 2019. Derrick Clay walked into a restaurant in Colorado, one afternoon in January 2017, to get a bite to eat. His card was declined. Clay, who has been diagnosed with psychosis and probable bipolar disorder, grabbed another customer’s order—a hamburger and French fries worth $11. Somebody called the police. When they got there, Clay was “acting very irrationally,” talking about how the streetlights had cameras in them, according to the police report on the incident. An officer called an ambulance to conduct a welfare check on Clay. When the responders arrived, they loaded him in to bring him to the emergency department of the nearest hospital. Clay had been on antipsychotics before and had experienced negative side effects, according to his mother, and later told her he thought he was going to be medicated. So when the paramedic tried to place a blood-pressure cuff on Clay, he panicked, punching him, according to the police report. The paramedic tried to subdue Clay, and, hearing the scuffling in back, the driver pulled over. The paramedic tumbled out of the rear of the ambulance with Clay and, with the help of bystanders, wrestled him to the ground. The responders gave Clay a shot of something to knock him out and put him back in the vehicle. They continued on their journey.

Several hours after arriving at the hospital, Clay, 26 at the time, was told he could leave. He called his mother, Fran, who drove down from her home in the foothills at four in the morning to pick him up. (Clay’s and Fran’s names have been changed because Fran is worried about retribution from police or prosecutors. Clay’s attorney declined to make him available to comment and said he did not have Clay’s consent to discuss his case. Fran’s account of events concerning Clay have been corroborated using official records where possible.) In Colorado, as in many states, an assault of an emergency medical care provider can lead to a felony charge. A couple of months after the incident in the ambulance, Clay received a felony summons to appear in court. (The ticket for taking the hamburger and French fries was voided, and the felony charge was later reduced to a misdemeanor.) Afterward, Clay started posting statements to social media that the judge thought seemed “to express some desire to harm” the paramedic, according to court transcripts. The judge decided that Clay posed a danger to himself and others, based largely on the social-media posts, and ordered him to be taken into custody. A 1960 U.S. Supreme Court ruling, Dusky v. U.S., requires jurisdictions that have arrested people who show signs of mental illness to determine whether the accused understand the charges against them and can participate in their defense. If not, they are declared “incompetent to stand trial” (or “incompetent to proceed”—terminology varies by state), at which point courts typically send them to a psychiatric facility for treatment. Once the facility and courts deem the suspect able to face charges, the legal process resumes. Across the U.S., people who should be placed in mental-health facilities for treatment are instead detained in jail for unconstitutionally long periods—sometimes months—before they have been convicted or even tried for any crime. Clay had been evaluated before the social-media posts and found incompetent to stand trial. At that time, the judge ordered the state to provide him with competency-restoration services—psychiatric treatment to get the arrestee to the point that he can understand the charges against him and participate in his defense—through an out-of-custody program that Colorado’s legislature had recently enacted. But the state Office of Behavioral Health hadn’t set it up yet, so Clay received no treatment between the evaluation and the Facebook posts, his mother said. Now, the judge wasn’t going to wait any longer; he ordered restoration treatment at a state psychiatric hospital. According to Fran, Clay was taken out of court in handcuffs. She left the courtroom and turned to a sergeant to ask what would happen next.

“We might not hear anything for a while,” he said. “What do you mean?” “Well, there’s some delays sometimes and there aren’t any beds.” “What do you mean?” (A sergeant said he recalled speaking with Fran about her son needing to wait for treatment, but didn’t remember this specific exchange.) What he meant, evidently, was that the only hospital that provides in-custody restoration for detainees deemed incompetent to stand trial often has no beds. According to Fran, that meant Clay would remain in a Colorado jail for the next 55 days with no psychiatric treatment. (The county would not discuss the case, citing privacy regulations. A jail spokeswoman said a licensed counselor is available to meet with inmates once a week, and that if an inmate requires treatment that exceeds the jail’s capacity, it will arrange for it. But a source with direct knowledge of jail practice at the time said it was difficult for inmates to see a psychologist or psychiatrist.) Read: America’s largest mental hospital is a jail Over the months that followed, Clay’s mother would discover that his experience was just one instance of a problem playing out across the U.S., in which people who should be placed in mental-health facilities for treatment are instead detained in jail for unconstitutionally long periods—sometimes months—before they have been convicted or even tried for any crime. Often, their condition deteriorates further as they are held in facilities unable to care for them. “It’s very widespread; we’ve seen it all over the country,” said David Boyer, a staff attorney at the National Disability Rights Network, a nonprofit.

According to the organization, lawsuits concerning delays in evaluating detainees for competency, or transferring them to appropriate facilities to restore competency, have been filed in 11 states since 2003. The most recent actions, against Alabama and Texas, came in 2016. In November, a 64-year-old woman named Jillian White took her life in a cell in Pitkin County Jail in Aspen, Colorado, where she had been held for more than 60 days following an incompetency determination. The Dusky ruling came at a time when hundreds of thousands of people diagnosed with behavioral-health conditions were confined to psychiatric hospitals. But in the early 1960s, after a series of scandals concerning these facilities, many were closed with the intent of delivering more services in communities. President John F. Kennedy signed the Community Mental Health Act in 1963 to improve outpatient treatment, yet those programs were never adequately funded, and in fiscally constrained times, services for people with mental illness have been cut further. “The dream of a good community mental-health system was not solved, and we went to the war on crime, the war on drugs, and massive cuts to housing—and sentencing guidelines pushed millions of individuals experiencing mental illnesses into the criminal-justice system,” said Steven Leifman, a judge who has been closely involved with the handling of individuals with mental illness in Miami-Dade County’s criminal-justice system for the past 20 years.

The result was that hundreds of thousands of people with mental illness ended up living in communities that couldn’t adequately treat them, or on the street, and in either case engaging more frequently with law enforcement. New medications have improved symptoms in many patients but have not provided cures. As arrestees exhibiting signs of mental illness flooded the courts, the diminished inpatient facilities were overwhelmed. By the early 2000s, arrestees in many states who were found incompetent to stand trial were regularly being held in jails for weeks, months, and, in some cases, even years, because state-operated mental-health treatment facilities didn’t have space. The jails were typically unable to provide them with adequate mental-health treatment. In 2003, after disability-rights advocates in Oregon sued on behalf of arrestees experiencing mental illness who were forced to wait long periods in jail, the Ninth Circuit Court of Appeals ruled that holding patients with mental illness who are awaiting competency-restoration services in jail for more than seven days after a court order violates the Fourteenth Amendment’s ban on deprivation of liberty without due process. The ruling, Oregon Advocacy Center v. Mink, opened the floodgates for lawsuits against states that were holding people with mental illness in jail for long periods prior to a trial or conviction. Every case, except for one in Texas, was either settled after defendants agreed to expedite competency evaluations or move arrestees to restoration treatment more quickly, resolved by a consent decree in which the court required defendants to implement such changes, or dropped after state legislatures passed laws to address the issue and plaintiffs agreed to withdraw their complaints. In some cases, states have paid fines and fees for failing to comply with court orders requiring them to move incompetent defendants within a set time period. Washington, one of the worst offenders, has paid more than $80 million. In June, Oregon State Hospital was found in contempt of court for failing to admit detainees who were incompetent to stand trial within seven days. The hospital was found to have been noncompliant with a court order for several months but has since returned to compliance.

Read: The tragedy of mental illness in American prisons “Jails are by design not suited to providing for the special needs of” individuals with mental illness, wrote Danna Mauch, CEO of the Massachusetts Association for Mental Health, in a sworn declaration in support of a motion for contempt against Oregon State Hospital. “These are distinctly nontherapeutic settings lacking access to treatment staff and treatment interventions responsive to their complex behavioral health and disability services needs.” Yet the delays continue. No organization or government agency tracks the number of people nationwide who are waiting beyond the legal limit in their state to be evaluated for competency or transferred to a state hospital once declared incompetent to stand trial. But the National Association of State Mental Health Program Directors, which polled states, found in 2017 that eight of the 37 states with relevant data reported having average wait times of longer than 35 days just to be evaluated for competency, during which detainees with mental illness were held in jails. When it came to transferring people from jails after they are found incompetent to stand trial, 11 states reported average wait times exceeding 28 days. In a 2014 survey, the organization reported that 31 of 40 states said they couldn’t clear up space for new detainees because the demand for inpatient services was increasing.

In California in 2015, the average wait was longer than 75 days; one defendant waited 258 days. In Colorado, the average waiting period has lengthened since a court ordered in 2016 that the state deliver restoration services within 28 days; as of October 31 of this year, nearly 150 people were being held in jail without a conviction despite being incompetent to stand trial. In recent years, some defendants have waited for as long as eight months for alleged crimes that included stealing a bicycle or spitting on a police officer. Since June, Colorado has paid $6.7 million in fines for failing to adhere to time limits for transferring detainees. (After years of mounting public concern, the state is also working to improve jail-based treatment, add beds at the state hospital, and increase the availability of outpatient restoration services.) In Texas in 2018, the average period that people with mental illness not convicted of any crime were held in jail was 229 days, according to reporting by the Corpus Christi Caller-Times. A 2017 survey by the Deseret News found that some detainees in Utah waited five months or more. In 2016, just one in five defendants in Washington was transferred within the seven-day time frame a judge had set the year before; one waited 97 days. According to Disability Rights Oregon, as of May detainees in Oregon were waiting an average of 24 days—10 days beyond the legal limit—though by November, waits were back down below the limit.

“Community services aren’t available, so they end up in these de facto psychiatric facilities that we call jails, and they’re overwhelmed,” Boyer said. “It’s a lack of political will and funding. They’re spending tons more money to institutionalize people … so it doesn’t make sense.” Read: How mental-health training for police can save lives—and taxpayer dollars While Derrick Clay waited in a Colorado jail for 55 days, his mother desperately pulled every lever she could think of to get him moved, in accordance with the law, to the state hospital in Pueblo. “I called the governor’s office, I called the legislature—and of course nobody knew anything,” she said. “I called insurance companies, medical providers; I of course talked to the jail.” Eventually someone connected her with Disability Law Colorado, a protection-and-advocacy organization with a mandate to protect the legal rights of Coloradans with disabilities, which had been filing legal actions against the state over the long delays since 2011. Her son, she learned, was more than a hundred spots down on the waiting list to be transferred to Pueblo. “I was actually comforted to know he was on a list,” she recalled ruefully. She continued advocating for her son. “I said, okay, so you don’t have a hospital bed—how about getting someone over there to do behavioral restoration services? How about getting someone to begin treatment? How about, how about, how about. And there was nothing anybody would do but let him sit there and wait on the list.”

Few county jails, especially in rural areas, provide mental-health treatment that medical professionals would consider adequate. Even in those that do, sick inmates must contend with an environment that can be damaging to anyone’s behavioral health. As arrestees with mental illness wait in jail, they are often hit with additional charges, lengthening their time behind bars. Reyes Cuellar, a 26-year-old day worker with a diagnosis of schizophrenia and bipolar disorder, was arrested in Colorado in March 2018 for shoplifting. Days after arriving at El Paso County Jail, he allegedly struck an officer and was placed in solitary confinement. “He deteriorated terribly,” his father said. One day when guards woke him to conduct a search, Cuellar allegedly struck an officer a second time, leading to another felony charge. It was June before a competency evaluation was finally performed at a state hospital, and October when he was transferred there. After entering into a plea agreement and being released on bond, Cuellar went to live with family out of state. When he returned to Colorado, he couldn’t get access to his medication for a few weeks. He deteriorated, and was arrested again. While waiting for another competency evaluation, he allegedly assaulted another officer in El Paso County Jail and now faces new felony charges. As of November, he was still at the jail waiting to be placed in a state hospital for restoration services. He is now awaiting sentencing. (Cuellar’s lawyer declined to allow The Atlantic to reach him, citing his incompetency. His name has been changed to avoid disrupting his case.)

Last year, Dominic Johnson walked to the hospital in his western North Carolina hometown seeking treatment for his schizoaffective disorder. There, he was allegedly involved in a scuffle with medical staff, and, like Clay, was charged with a felony. After being taken to the local jail, he waited more than three months for a bed at a state hospital. While in jail, he was administered the antipsychotic Haldol, even though his medical records indicated that he had previously had a severe adverse reaction, his mother said. He was also placed in solitary confinement. “He needs involvement with others to keep him grounded to reality,” his mother said. “To be isolated like that is really scary for him.” (Johnson is still in a state hospital, according to his mother, and could not be reached for comment. Johnson’s name has been changed because his family fears retribution from police or prosecutors.) Many detainees who are incompetent to stand trial are held in jail awaiting treatment for longer than the maximum sentence they’d receive if convicted. Diane Prigge was in a Utah jail for almost a year, nearly as long as the maximum sentence she could have received. Eventually, at the age of 62, she was transferred to the state hospital in Provo. (Prigge’s attorney declined to comment on her behalf. Her case was first reported in the Deseret News.) Often when detainees with mental illness are held in jails, they “decompensate”—that is, their symptoms intensify. Once they are transferred to a hospital, it can take longer to restore them to competency, which increases wait times for those still in jail. Detainees in U.S. jails who are incompetent to stand trial have committed suicide, been injured (by themselves, guards, and other inmates), and died from neglect.

In 2010, Rodney Bock was arrested for making threats at an Applebee’s restaurant in Yuba City, California, and ordered to be transferred to Napa State Hospital following a competency determination. Bock’s family alleged in a lawsuit that staff at Sutter County Jail held him there despite being aware of the gravity of his condition and knowing that the jail was not capable of providing, or legally authorized to provide, mental-health treatment for patients under such an order. During his incarceration, Bock forcefully banged his head against the wall of his cell. “There was blood everywhere,” according to a deposition from one member of the jail’s staff. “On the floor, on the walls, on the sink, on him, all over.” He then hanged himself, and died, at the age of 56. “I have missed him every single day for the past nine years,” Bock’s daughter, Kimberly, wrote in an email. “It’s not just the big events like graduations, weddings, and the births of his many grandchildren that come to mind. It’s also the small moments and day to day living where his loss is evident and painful.” (The lawsuit was settled in 2014 for $800,000. Sutter County Jail has since taken steps to improve its mental-health services, such as increasing its medical staff.) Read: How to fix a broken mental-health system Derrick Clay was an athletic kid, playing soccer and baseball and winning a “skier of the year” honor as a senior in high school. He wanted to be a journalist and had earned awards for his writing. Antipsychotic medications, which he began taking when he was 19, sapped his energy and caused him to put on weight, his mother said.

Yet Clay was one of the fortunate ones. While an estimated 48 million American adults experienced mental illness last year, more than half of them did not receive treatment. This is both a legacy of the mid-century closure of psychiatric hospitals and a function of a broader dearth of government funding for mental-health care. The number of psychiatric hospitals has continued to decline. According to a survey of experts by the Treatment Advocacy Center, a nonprofit focused on treating severe mental illness, communities need at least 50 psychiatric hospital beds per 100,000 people in order to provide adequate care, but the ratio dropped as low as 17 per 100,000 in the U.S. in 2005 before climbing to 40 in 2016. “We have this long history of closing hospital beds, so there’s no place for people with mental illness to go,” said Frankie Berger, the center’s former director of advocacy and now the director of state policy and advocacy at the National Council for Behavioral Health. Community resources are so few, she said, that “you’ve got this perversion of common sense where all these people who are supposedly very well intentioned”—such as judges and state officials—“are wondering out loud if it might be better to get people with mental illness involved in the criminal-justice system so they can access treatment.” Other factors have exacerbated the problem, including a shortage of psychiatrists and psychologists willing to work for government agencies that provide less compensation than they would receive in private practice. When faced with legal action, Washington State cited a lack of mental-health professionals as a major barrier to its ability to provide restoration services within court-mandated time frames.

Mental-health and criminal-justice experts question whether many of the people with mental illness who are jailed while waiting for competency restoration need to be arrested in the first place. Many police are not trained to handle people in a behavioral crisis, which often leads to their lashing out against standard police procedures. Situations that were not criminal in nature therefore often lead to criminal charges. Then the arrestees wait in jail for competency evaluation and restoration. Derrick Clay was originally cited for a misdemeanor for taking the combo meal and ended up stuck in jail because of what happened after police arrived. But in many places, there’s no one to call besides police. Some experts say as many as 40 percent of calls to police concern a mental-health emergency. “Unfortunately, we do not have appropriate systems in place to respond to mental health and substance use crises,” according to a position statement from Mental Health America, an advocacy group. The statement says the U.S. suffers from a “lack of alternatives.” As the public becomes more aware of improper police handling of mental illness—including more than 1,000 instances in the last five years in which police fatally shot individuals who were experiencing a mental-health crisis—many departments are training “crisis-intervention teams.” The practice began in Memphis in 1988 following the police shooting of a man with a history of mental illness. Officers learn de-escalation techniques and more, and aim to divert individuals to mental-health services as appropriate (when they are available, anyway). Training materials can include instructions such as “When you don’t know what to say, say nothing”; “Use voice volume lower than that of individual”; and “Attempting to use logic/rationality with a psychotic person is counterproductive, will most likely escalate person.”

Miami is one of the growing number of cities now using the tactic. From 2010 to 2018, 91,472 mental-health-related calls to Miami-Dade County’s two largest police agencies resulted in just 152 arrests by their 7,000 trained officers, according to Judge Leifman, who helped to develop the program. This reduced pressure on police and courts: Total arrests fell from 118,000 a year to 53,000. Another strategy, called the co-responder model, sends a crisis worker with police on calls triaged as mental-health related. Fort Collins, Colorado, initiated such a program in July 2018; to date, not a single person without an active warrant had been sent to jail. “It’s a process we were always missing as cops,” said Lieutenant Dan Murphy, who oversees the program’s operations. With a co-responder alongside, “The options expand from take ’em to the ER, take ’em to jail, or let ’em go. The ER was saying, ‘Help us.’ The jail was saying, ‘Help us.’ Cops were dying for it.” Fran Clay is convinced that if police outside the restaurant that afternoon in January 2017 had received proper de-escalation training, or if someone with specialized training had been called, her son wouldn’t have spent 55 days in jail, all because of the improper apprehension of a combo meal. “What has been done to him by the medical profession, law enforcement, prosecution, the Office of Behavioral Health,” Fran said, pounding the table where she sat, “is barbaric and inhumane and has done real harm to a young man.” After his time in jail, Fran said, her son was remanded to a jail-based restoration program that a private contractor runs at the Arapahoe County Detention Center. (The jail would not comment on Clay’s enrollment in the program, citing privacy regulations.) Three weeks later, he was deemed ready to appear in court. Clay entered into a plea agreement and served nine months of probation.* And then he was done. Clay is living on his own, in an apartment outside Denver. He’s working and exercising. “I know he can find joy in his life and live a good life,” Fran said. “What’s made me sick to death is what the system has done to him. * This article has been updated to clarify the terms of Clay’s probation. Related Video