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A decades-old Pennsylvania law is supposed to protect people with mental health issues from prosecution if they cannot understand the legal system and cannot aid in their own defense, but a recent investigation found that instead, that very system often traps them in jail.
The six-month investigation, published by Spotlight PA and the Pittsburgh Institute for Nonprofit Journalism, found the state’s “competency” review system is so broken it often extends incarceration, which can exacerbate mental health issues.
There is no one state agency overseeing the competency system and no standardized way for documenting competency assessments and hearings, making it difficult to identify people who might be languishing in jail. In the absence of a statewide solution, some local government officials and agencies have come up with their own ways to address the problems:
As part of their investigation, Spotlight PA and PINJ conducted an analysis of nearly 700 cases involving competency issues — cases likely to involve someone with serious mental health needs. The review found the cases most often involved nonviolent misdemeanors or summary offenses, Pennsylvania’s most minor charges.
Experts echoed this finding and said it creates a cycle of incarceration. Those with mental illness often face arrest for low-level crimes, may deteriorate while incarcerated, and upon release are at greater risk of another arrest.
Fixing the system, they said, includes preventing that cycle before it begins. In Lancaster County, some police departments are trying to do just that.
“The problem is that officers only had two tools — handcuffs and ambulances,” said Elizabethtown Police Chief Ed Cunningham. “If we couldn’t force you to go in an ambulance, then the only way we could get you to somebody who would help you is with handcuffs.”
Previously, officers responding to a person in crisis might have engaged in “mercy booking,” Cunningham said, to try to get someone clearly suffering from a mental health or addiction issue in front of a judge who can order treatment.
Now, in his jurisdiction, the district attorney, local judges, and the department have given officers the authority to throw away low-level charges.
Instead of arresting people in crisis, Cunningham said, officers connect the individuals with an on-call civilian crisis responder who will help figure out what they need — whether that’s to get home so they can take their medicine, or to check into a long-term treatment facility.
But the Elizabethtown programs survive on a hodgepodge of support from Lancaster County, state and federal grants, and partnerships with local businesses including the local addiction recovery provider Blueprints.
“We’re always looking for partners, ways to pay for this to make it self-sustaining,” Cunningham said.
Defense attorneys across Pennsylvania told Spotlight PA and PINJ the state competency system is so broken, they routinely avoid it.
In Philadelphia, attorneys at the Defender Association of Philadelphia, a public firm that provides no-cost legal counsel, can do so because it has a strong working relationship with the city’s district attorney, Norristown State Hospital, and the courts.
These connections help avoid trapping people with minor charges in the criminal system.
Gregg Blender, formerly the head of the firm’s mental health unit, recently represented a woman whom police repeatedly arrested for breaking into a residential home, a potentially serious offense.
“That sounds horrible, except the house was abandoned, it was being rehabbed, and … that was her childhood home,” Blender said. “And she kept going back to it because she believed she still lived there.”
Instead of requesting a competency evaluation, the firm worked with the Philadelphia prosecutor to drop the charges, an option Blender admits isn’t feasible everywhere.
The Defender Association has done training for public defenders in other counties, but without the same level of resources or relationships, the system is difficult to replicate.
“They look at us like we have two heads. ‘That will never work here,’” Blender said. “We hear that.”
In response to a Spotlight PA and PINJ survey, jail leaders across the state said that while arrest and incarceration have become the de facto resource for people experiencing mental health crises, the facilities are largely unable to provide proper care for these people once they arrive.
If the person’s mental health condition interferes with their ability to stand trial, the leaders said, they can languish for weeks if not months waiting for one of fewer than 400 state hospital beds designated for competency restoration treatment.
In Allegheny County, where the problem is particularly acute, the jail and the local human services department have plans to create a “mobile competency restoration and support team.”
The team would provide treatment outside the state hospitals and cut down on the amount of time people remain incarcerated for mental health issues.
The county issued a request for proposals in October and closed submissions from interested contractors in December but received no bids, according to county spokesperson Amie Downs.
“They have revised it and expect to issue that revised solicitation in the coming weeks,” Downs said.
The new team would provide treatment in the “least restrictive care setting, with a focus on community based interventions whenever possible,” according to the request for proposals.
“Any period of incarceration is detrimental to an individual’s health and wellness,” the request for proposals reads. “It severs important connections to community, natural supports and service providers, and periods of incarceration can result in isolation, trauma and increased mental health needs.”
In other county jails, officials coping with extended wait times for state hospitals have proposed in-jail clinics or therapeutic services.
Last year, York County approved a study examining the feasibility of building a competency restoration clinic inside the jail after officials discovered two men had been waiting for a state hospital bed for 1,000 days. During a prison board meeting March 13, York Warden Adam Ogle said officials are reviewing a draft of the feasibility study, according to the York Dispatch.
In Beaver County, similar issues with lengthy wait times prompted jail leaders to bring a health contractor to the jail to provide competency restoration, according to Warden William Schouppe.
But experts have warned against any solution that relies on in-jail mental health care.
In Tennessee, Nashville’s county jail opened a behavioral health center aimed at treating incarcerated people whose charges likely stemmed from mental health issues. Diverting the people to these beds is better than having them in jail, said Christopher Slobogin, director of Vanderbilt Law School’s Criminal Justice Program.
But the Nashville facility still funnels people through the criminal system.
“That’s a criminal solution,” he said. “The civil solution would be you have communal health centers. They conceivably could have small, inpatient capacity. But the ideal would be outpatient treatment, primarily.”
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