Jack Harvey McClellan was mentally ill, but not mentally ill enough.

The 62-year-old veteran came to Hennepin County court’s mental health channels the usual way: He was arrested. Over a six-month period last year, McClellan was charged with eight offenses. Most were minor: trespassing at a grocery store and a veteran affairs building, a couple of small thefts. But in October, McClellan relieved himself on a mailbox in Bloomington while a 9- and 12-year-old watched from their parents’ living room window. By the time police arrived, according to court documents, McClellan didn’t even seem to remember doing it.

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When McClellan came to court in November for the indecent exposure case, Judge Kerry Meyer flagged him as possibly mentally ill, and a psychologist deemed him incompetent to face the charges. The ruling kicked the case over to civil commitment court, where a new judge would decide if McClellan needed mental health treatment from the state. In doing so, Meyer dismissed the seven misdemeanors. The prosecutor didn’t file the paperwork in the allotted 30 days on the indecent exposure charge — the only gross misdemeanor — so that disappeared, too.

On the civil side, Judge Jamie Anderson didn’t believe McClellan posed enough danger to himself or others to qualify for civil commitment, despite her concerns for his safety. He’d recently been evicted from his apartment, she noted, and with winter already arriving, “housing of some sort is essential.” Still, Anderson cut him loose, hoping he would seek treatment and find a shelter on his own.

McClellan wouldn’t be away for long. By February, he had already been charged four more times for trespassing and theft, which brought him full circle: back in Meyer’s courtroom, where he’d stood not three months before.

When he came before Meyer this time, he wore medical boots on both feet. He'd suffered severe frostbite from living on the streets.

Falling through the gap

McClellan is what those in the criminal justice system call a “gap patient.”

He doesn’t meet the court’s competency standard to face criminal charges, but he also doesn’t meet the standard for civil commitment: court-ordered, involuntary mental health treatment administered by the state. So he falls through the gap.

In Hennepin County, “gap” is a conservative euphemism. Last year, more than half of those deemed incompetent to face charges were also uncommittable.

What happens to people ruled incompetent to stand trial? 46 were civilly committed;

4 had cases that went unresolved;

7 had a 'stay of commitment';

62 were released without further treatment. In 2014, 119 people were found incompetent to face their criminal charges in Hennepin County. Of those: Credit: Judge Kerry Meyer



Like McClellan, many gap patients come to court as repeat offenders of nuisance crimes. They are frequently homeless, so offenses like trespassing, public urination and open alcohol consumption are common.

“These people are often very miserable and unhappy,” says Dr. Lawrence Panciera, chief psychologist for Hennepin County courts. “They’re physically deteriorating. They’re living a very hard life."

Gap patients make up a small portion of arrests, but they require a disproportionate amount of the county's resources. And, as with McClellan, they frequently end up back in the system soon after their release — sometimes repeatedly, until they finally cross the line and get committed. In the meantime, particularly if they’re not getting treatment on their own, they can deteriorate mentally and physically. Or they can get hurt.

“It should be obvious that our system is failing when it allows about one-half of the people who are too mentally ill to face a criminal charge to be simply turned out to the streets without treatment,” says Judge Jay Quam, who previously presided over Hennepin’s civil commitment court.

Tracking the uncommittables

When McClellan came back to court with frostbite, Meyer again sent his case to civil commitment court. This time, the civil judge did find him committable and sent him to mandatory treatment.

But Meyer believes it never should have taken that long — that cases like McClellan's shouldn't have to escalate to physical harm before patients can get court-ordered help. “Just because a person does not meet the commitment standard does not mean he or she would not benefit from services,” she says.

The commitment gap isn’t new; it’s been around for decades. But it’s been exacerbated in recent years by an unprecedented rise in the number of petitions filed for offenders believed to be incompetent.

In fiscal year 2005, there were 244 petitions — called Rule 20s — filed in Minnesota, according to Hennepin County court data. By 2015, the number of petitions hit 567 — a 132 percent increase (though it should be noted that some cases may involve multiple Rule 20 petitions).

It’s unclear exactly what caused the spike. A popular theory is that it’s the result of so many people losing their jobs and health insurance in the Great Recession, while at the same time budget cuts reduced or eliminated community resources.

Rule 20 petitions on the rise Rule 20 petitions are filed on behalf of offenders believed to be incompetent to stand trial. In the last few years, the number of petitions filed in Minnesota have been on the rise. Note: some petitions may be filed for the same offender, based on multiple charges. Source: Fourth Judicial District Psychological Services



Until recently, no one tracked closely what happened to these cases after the court found the offender incompetent, meaning no one in a position to do anything about it knew how often the Jack McClellans of the world were falling through the gap. About a year and a half ago, though, Meyer and her clerk decided to take matters into their own hands and track the data themselves.

They found that last year, of the 119 offenders found incompetent, 62 were gap patients. Forty-six were committed, seven were given stays of commitment — meaning their commitment is suspended while they cooperate with a social worker — and four are still pending.

When an offender is found incompetent, the judge drops any charges that don’t rate above a misdemeanor. For gross misdemeanors and felonies, the criminal court orders the offender to return six months later to be evaluated again. The idea is that when these patients get back to competency, they’ll be able to face their charges. But for gap patients, all services are voluntary. If they don’t opt for some kind of treatment, the odds of them getting better are much lower.

Last year, 113 offenders returned to court for this six-month re-evaluation. Thirty-seven of those had been civilly committed, meaning they were under state care, and 75 of were gap patients.

Of those who had been committed, the court found 23 —61 percent – had been restored to competency, and could now face their charges, according to Meyer's data. In contrast, only 20 gap patients —or 27 percent — were deemed competent.

‘They’re going to get worse’

MN Bar Association Judge Kerry Meyer

In early 2014, Meyer joined a new working group in Hennepin County called the Criminal Justice Coordinating Committee, with the goal of addressing problems created by the growing number of mentally ill people coming through the criminal justice system. The committee gathered people from every point of the system for the first time, including prosecutors, public defenders, human services workers and law enforcement. The group identified these gap patients as a top priority.

The greatest concern is the risks these people pose to themselves, especially given so many are homeless, says Hennepin County prosecutor Carla Hagen. McClellan wasn’t the first to get frostbite. Others end up in the hospital badly beaten. “Ultimately, if age catches up with them, they’re going to get worse,” says Hagen.

Personal safety isn't the sole worry, however. Gap patients can also be a massive drain on the county’s resources. McClellan went through two judges, two attorneys and two court-appointed psychologists before the court cut him loose the first time — only to return a couple of months later. Many also sit in jail for weeks or months on end only to have their charges suspended or dismissed. That costs about $120 a day — and often much more for those severely mentally ill patients who need special treatment.

And a stint in jail is a poor substitute for therapy, says Mary Moriarty, chief public defender and chair of the committee. “The criminal justice system is ill suited to deal with clients who suffer from mental health conditions,” she says. “And it’s expensive.”

In addition to court costs, these so-called “frequent fliers” also end up being a great burden on the police officers tasked with repeatedly arresting them, often to no avail. “They’re frustrated seeing a number of these folks just cycle through the criminal justice system for these low-level offenses,” says Leah Kaiser, manager for Hennepin County's Human Services and Public Health Department. “And there just isn’t any resolution.”

In Hennepin County, the most extreme example is Edgar Coleman, who loitered around the University of Minnesota campus for years, and was often caught trespassing in the college’s buildings. Coleman’s rap sheet stretches to more than 150 offenses. He cycled through the civil commitment system repeatedly until he was finally committed a few years ago.

There’s also a safety risk to the public. By definition, these offenders don’t constitute an immediate threat to others when they come into court. But that can change if they go untreated for long enough, says Panciera. Given enough time without treatment, they may indeed do something violent, like get into a fight or punch a police officer, he says.

A jail-diversion hub, called a Central Receiving Center, could be a long-term solution to helping patients get treatment faster, while also decreasing the number coming into the jails.

It's a difficult problem to address within Minnesota's current laws. Dealing with this group requires a delicate balance between the desire to help and a respect for civil liberties. The moment judges rule these patients uncommittable, the county no longer has any authority over them. Any services from that moment become voluntary. “People have a right to be homeless, if that’s what they want,” says Moriarty.

But the Hennepin committee has already found ways to get this population services before the offender leaves the county's custody. Today, as soon as the paperwork is filed for an incompetency evaluation, the court assigns a caseworker, who begins the process of finding the patient resources for things like chemical dependency or medical treatment. Specialized social workers also begin connecting these patients with other community resources — often when the offender is still in jail — such as housing and therapy. This way, if they do end up falling through the gap, they already have access to help.

The hope is that treating these patients earlier will not only help them get better quicker, but it will also limit the amount of public money spent on a system that’s clearly not effective, says Kaiser. “We want to use our resources — taxpayer dollars in particular — toward what works.”

These measures haven’t eliminated the problem entirely. In the first five months of this year, out of 26 cases a judge has rule on, at least nine patients fell through the commitment gap, according to Meyer’s data.

Shrinking the gap

Last year, the Hennepin committee went looking for answers in an unlikely place: Florida.

Several members traveled to Orlando to tour a jail-diversion hub called the Central Receiving Center. Founded in 2003, the hub offers an alternative for police who pick up alleged criminals showing signs of acute mental illness. Instead of taking them to jail or spending hours trying to check them into a hospital, the cops can bring the patients straight to the hub. From there, hub staff begins the process of evaluating the patient and finds the appropriate care placement, ideally within 24 hours.

The committee is exploring whether building a hub like Florida’s in Minnesota could be a long-term solution to helping patients get treatment faster, while also decreasing the number coming into the jails. The hope is that fewer mentally ill people would go through the criminal justice system and end up in criminal court, and the gap would get that much smaller.

“It gives an option for the police, which also saves their time,” says Moriarty. “The criminal justice system doesn’t really need to deal with low-level charges emanating from their mental illness.”

Not everyone shares Moriarty's optimism about the hub concept. Sue Abderholden, Minnesota chapter executive director for the National Alliance on Mental Illness, believes the Florida model would be just a “different revolving door.” Instead, Abderholden suggests spending money on resources like supportive housing, employment assistance and Assertive Community Treatment, a collaborative model providing patients with everything from medication and therapy to social support. Abderholden says the real solution is much more complicated, and requires collection of more data on what early triggers set these people on a path that eventually leads to the need for emergency treatment. “That’s the piece that’s missing in all of this,” she says. “We’re dealing with the emergency of the time instead of looking more upstream.”

Earlier this year, Sen. Barb Goodwin, DFL-Columbia Heights, proposed spending $5.5 million on three 16-bed hubs similar to Florida’s. With a lack of support from mental health advocates like Abderholden, the proposal didn’t make it into the final Health and Human Services bill.

It’s unclear if the hub concept will come up again next session. In the meantime, the committee members want every police officer in Minnesota to receive crisis intervention training, which would help the officers to better identify those suffering from mental illnesses and treat them appropriately.

Judge Meyer believes the key is getting help to these patients while the civil commitment cases are still pending. This could help some get restored to competency before the civil ruling comes down, meaning it could actually reduce the number of commitments, she says. Meyer also wants to continue enrolling the patients into community-based services while they’re still in the system — before they get dismissed and become gap patients.

Closing the gap entirely is a lofty goal. Hennepin County Sheriff Rich Stanek estimates that between 25 and 30 percent of the county jail population suffers from mental illness. With so many patients, there will likely always be some offenders who fall through the cracks of the system.

However, says Panciera: “You can make the gap smaller and smaller and smaller. I think it’s worthwhile to try and make that gap as small as possible.”