by Christopher Zoukis

When criminal defendants are found mentally incompetent to stand trial, a judge typically orders their transfer to a psychiatric hospital for treatment to restore competency. But many states struggle with a shortage of psychiatric beds, even as the number of mentally incompetent defendants has grown. So the mentally ill often remain in jail, which exacerbates their mental health conditions.

Maryland is experiencing a shortage of psychiatric treatment beds – something that Paul DeWolfe, the state’s chief public defender, called a “long-standing problem” that has reached crisis proportions. The Maryland-based Treatment Advocacy Center (TAC) counted a ten percent drop in psychiatric beds in the state between 2010 and 2016, which mirrors a 17 percent decline nationwide – reducing the number of available beds in the U.S. on a per capita basis to a new low.

In Maryland, TAC reported the loss of 108 psychiatric beds was met with a 250 percent increase in pretrial competency hearings. What has followed, the advocacy group said, is like a game of “musical chairs” – shuffling one patient out of the way long enough for a pretrial competency evaluation to be completed, then returning that defendant to jail so the original patient can reclaim the psychiatric bed and resume treatment.

Maryland is one of just three states that do not offer assisted outpatient psychiatric treatment, which, according to TAC, only makes the bed shortage worse.

A class-action lawsuit filed in 2016 on behalf of mentally incompetent defendants named the then-Maryland Department of Health and Mental Hygiene (DHMH) and its former secretary, Van T. Mitchell, as defendants. The suit claimed that as of June 2016, at least 84 Maryland pretrial detainees were waiting for court-ordered bed space at psychiatric facilities, including the Clifton T. Perkins Hospital Center, a forensic hospital.

“Rather than complying with these court orders,” the lawsuit stated, “DHMH, by its actions and inactions, requires plaintiffs and class members to languish unlawfully in jail or detention facilities.”

Members of the American Federation of State, County and Municipal Employees, Maryland’s largest public employee union, laid blame on Governor Larry Hogan and his inability to ensure enough psychiatric beds and staffing for the state’s needs. State Senator Richard S. Madaleno, Jr. agreed with AFSCME.

“The Hogan administration has taken no action in order to make progress on this,” he said. “If you want to have good outcomes in public safety and public health, putting the money in is the way to get this done.”

Baltimore Circuit Judge Gale E. Rasin put her foot down on the issue in 2017, holding several state officials in contempt for failure to follow court orders to place mentally incompetent defendants in psychiatric hospitals. DHMH Acting Secretary Dennis Schrader was one of those officials, whom Judge Rasin said must “fix this problem and do it now.”

“[DHMH] has failed miserably to meet its responsibility,” she wrote, referring to the evaluation and treatment system for mentally incompetent defendants as “a shambles.”

“[S]everely mentally ill people are sitting in jail – and that’s probably the worst place for them to be,” said DeWolfe, the Maryland public defender. “They are turning our jails into de facto mental hospitals.”

On August 28, 2017, a state appellate court found that delays in sending incompetent defendants to psychiatric facilities may violate court orders but do not violate state law, though the plaintiffs in the case raised potential due process claims.

“We hold that the statute itself does not set a deadline for admission to a psychiatric hospital. Nor does it authorize a circuit court to do so,” the Court of Appeals wrote. “Accordingly, a delay in admitting a criminal defendant by a deadline set forth in a commitment order does not violate the statute, although it may violate the commitment order. Nevertheless, depending on the circumstances of the particular case, such delay may violate the due process guarantee of the Maryland Declaration of Rights unless the delay is reasonable under the circumstances of the particular case.” See: Powell v. Md. Dep’t of Health, 455 Md. 520, 168 A.3d 857 (Md. Ct. App. 2017).

In 2018, the state’s General Assembly considered a bill (SB233) to require psychiatric facilities in Maryland to accept court-ordered transfers within ten business days. The bill penalizes the state for a missed deadline with both a fine and reimbursement to the transferring jail for the cost of holding the mentally ill defendant.

Testifying against the bill in January 2018, Robert R. Neall, Secretary of the Maryland Department of Health (the new name for DHMH), said it could cost nearly $100 million to satisfy the law’s requirements – $65 million to construct another psychiatric hospital and $27.5 million annually to operate it. At the time, he announced the state would instead add 100 beds to its existing psychiatric treatment facilities.

“We are committed to fixing this long-standing problem and providing treatment for these individuals,” Neall said.

He also testified that he would prefer a 21-day window to make court-ordered psychiatric transfers, but would not be “comfortable” with a period shorter than two weeks.

“This is a real public safety issue,” countered Delegate Erek L. Barron. “When we’re not giving people the treatment they need, it exacerbates their problems.”

“I’m just trying to figure out where we find another $100 million to do something like this,” worried Delegate Joe Cluster.

Testimony in support of the bill came from District Judge George M. Lipman, who presides over mental health court proceedings in Baltimore. Every day of delay, he said, is a “lose-lose-lose situation.” Also testifying for the bill was Shelford Gillam, deputy warden at a detention center in Montgomery County. He said delays in transferring incompetent defendants create “a risk not just on the inmate but on the staff that supervises them.”

The legislation passed in April 2018 and was sent to Governor Hogan for his signature. 

Sources: Baltimore Sun, Washington Post, WTOP News Radio

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