Rural Jails and Mental Health: The Hardest Challenge

Jail officials in rural communities frequently cope with staff shortages, overcrowding and budget shortfalls—all of which make it especially difficult to meet the needs of mentally ill inmates. One official in northeast Nebraska says the problem is the worst he can remember in nearly four decades.  

“There is nothing, nothing worse than seeing someone in jail for a misdemeanor nonviolent offense who has a mental illness,” said Vicki Maca, director of criminal justice/behavioral health initiatives for a region that encompasses northeast Nebraska.

They’re not in a therapeutic, trauma-informed environment,” she added .

And staff shortages are making things worse.

As Nebraska wrestles with shortages in psychiatric providers, officials are concerned that individuals struggling with mental illness are becoming increasingly entangled in the criminal justice system, frequently winding up in county jails.

And those jails, particularly in more rural communities, face unique challenges in meeting the complex needs of mentally ill inmates, according to mental health providers, jail administrators, county officials and criminal defense attorneys.

At these jails, there is no full-time staff devoted to mental health needs, as there is in the state prison system—which, while facing its own challenges with crowding, has a mental health unit.

The restrictive jail environment isn’t conducive to individuals struggling with mental illness, officials say. Yet those individuals face greater challenges moving through their criminal proceedings—such as long waitlists at the state’s Regional Centers, which conduct court-ordered competency restorations—which lengthen their stays.

Officials worry that challenges in providing continuous care out in the community increase the likelihood that mentally ill individuals may find themselves back in jails multiple times.

At the Saunders and Washington County jails, officials believe that mental illness is playing a far larger role in inmate populations than in the past.

“I’ve been doing this for 37 years, and I don’t ever remember the number of people with mental health issues being as dramatic, or significant, as large as it is right now,” said Captain Rob Bellamy, head of corrections in Washington County.

A 2006 report from the Bureau of Justice Statistics found that 64 percent of inmates in local jails across the country had some sort of mental health problem. The Virginia-based Treatment Advocacy Center estimates that 16 percent of inmates in jails and prisons have a severe mental health illness, such as schizophrenia or bipolar disorder.

More recent, localized data on mentally ill inmates is hard to come by. But generally, rising jail populations are becoming a greater concern for area counties.

The average daily population of Dodge County inmates at the Saunders County jail, which holds inmates from Saunders, Dodge and Sarpy counties, has increased from 61 to 81 since 2012, growing to encompass more than two-thirds of the total jail population, according to Jail Administrator Brian Styskal.

Washington County, meanwhile, is constructing a new, $24.5 million justice center—complete with a 120-bed jail—to accommodate a growing population that routinely exceeds its 17-bed capacity, and requires housing inmates in other counties.

Officials attribute jail growth to a number of factors, such as changes in sentencing laws and rising drug use, which is often coupled with mental illness, especially when individuals face obstacles in receiving proper medication or treatment.

“A lot of crimes are committed are when folks that I know, because I’ve dealt with them over the years, I know they have mental health issues, and doctors and psychiatrists have told me that,” said Dodge County Attorney Oliver Glass.

“I can tell you from my experience that a lot of [mentally ill individuals’] criminal activity occurs when they are self-medicating with alcohol or illegal street drugs.”

A rising population also leads to rising costs. To house its inmates in Saunders County, Dodge County pays a baseline cost of $64.50 per inmate per day, Styskal said, and that doesn’t include additional expenses, such as medical costs, which have been rising. This past year, the county spent $346,569.58 on inmate medical costs, more than double the original budgeted amount of $140,000.

That expense has increased every year since the 2013-2014 fiscal year, when it was just below $30,000. Medical costs have increased in Washington County as well, Bellamy says.

Mental health can play a big role in driving those costs.

A 2017 suicide in the Dodge County jail accounted for $114,000 after the inmate was flown to Lincoln for emergency medical treatment.

But even more alarming than the burden on counties’ budgets is the concern that jails are not an appropriate environment for the mentally ill.

“They’re in a jail, they’re having limited contact with other people, they may or may not be on their meds, they’re not getting support from family and friends like they may need, they’re not maybe seeing the mental health people as frequently as we would all like, ”  said Maca who coordinates mental health services for Behavioral Region 6, which covers five Nebraska counties, including Dodge and Washington.

The jails also lack re-entry planning services, Maca said, which are available in the prison system or in larger jails, like in Douglas County. Those services could help line up mentally ill inmates with the resources they need out in the community to stay out of jail: counseling, substance abuse treatment, housing, vocational training and more.

Through Region 6, Washington and Saunders are currently exploring the possibility of adding those services, though there are challenges at the jail level. In prisons, release dates are based on fixed sentences that are easy to predict. For jail inmates whose cases are being processed at varying lengths, preparing such services can be more difficult, Maca said.

Both jails have access to mental health crisis intervention services, which can respond in emergency situations. But those services are provided from outside the jails by local community-based programs, such as Blue Valley Behavioral Health and Lutheran Family Services.

Managing psychotropic medications in the correctional setting is also a challenge, as the medical practitioners from Advanced Correctional work to verify that prescriptions are accurate and that medical and mental health needs are legitimate.

Area defense attorneys are often concerned about how medications are doled out, especially at the larger Saunders County jail. They grow concerned that their clients are being forced off stabilizing medication “cold turkey.”

“That kind of confinement, and that kind of treatment of them really exacerbates some of their mental illness, especially when you restrict them on their access to meds going in,” said Fremont attorney Richard Register, who also sits on the county mental health board, which determines whether mentally ill individuals should be committed to state hospitals.

Generally, getting incarcerated poses frustrations for individuals who are on medications, especially if those medications have withdrawal symptoms, said Lindsay Kroll, Crisis Response Supervisor at Lutheran Family Services in Omaha.

Even in the period of time it takes to verify prescriptions, those symptoms can begin to manifest, she said.

Jail administrators, meanwhile, have to ensure that they are meeting inmates’ medical and medicinal needs while guarding against the potential that medications may be abused. With substance abuse becoming increasingly prevalent, jails need to ensure that prescriptions are legitimate, that needs are real and that inmates struggling with addiction aren’t seeking to compensate for lack of access to street drugs, Styskal argued.


“It makes it a problem for our contract medical provider where, their license is on the line for whatever they prescribe, so they have to be definitely cautious and make sure there is a medical need versus a medical want,” Styskal said.

And often, at the request of attorneys, judges will intervene, signing orders compelling the jails to prescribe those medications, Styskal said, though he believes that those decisions are often made without considering the full history of the inmate and the possibility that they may seek to abuse those medications.

Additionally, inmates with mental health issues often spend longer times in jails than other inmates. Among other contributing factors here in Nebraska is the lack of available inpatient beds at the state Regional Centers—inpatient psychiatric institutions that also provide court-ordered competency evaluations and restorations, when a defendant appears incompetent to stand trial.

Meanwhile, wait times for admissions at the still fully operational Lincoln Regional Center have increased. Mentally ill defendants ordered to receive competency evaluations can be put on long waitlists, awaiting court-ordered resources that must occur before their case can proceed.

The average wait time for a bed at the Regional Center in 2018, through Sept. 30, is 85 days—more than double what it was in 2014. Dodge County inmates have waited for anywhere between 30 to 100 days, said County Attorney Glass. In Washington County this year, one inmate spent more than 10 months waiting for a competency evaluation.

“That’s frustrating from the jail and the jail administrators’ perspective because apparently, the system recognizes that he has a problem that needs to be treated, but yet he continues to be warehoused in a jail because there’s, obviously and apparently, there’s nowhere else for them to go,” Bellamy said.

The Regional Center conducts competency evaluations both inpatient and outpatient, according to the state’s Department of Health and Human Services. The number of those evaluations are up: in 2018, through Sept. 30, there were 223 competency evaluations compared to 138 in 2016. Most of those were conducted in an outpatient setting.

But the higher number of calls means more individuals found to be incompetent to stand trial, which puts them on the waitlist for an inpatient bed for competency restoration, which can only be conducted at the Lincoln Regional Center, DHHS said.

Still, officials and attorneys say that the biggest frustration is the barriers to care outside of jail, like expensive medication or a shortage in psychiatrists. And for those who face those barriers, the criminal justice system may be their first exposure to treatment. Fremont-based attorney Leta Fornoff has seen that firsthand.

“I can say that there have been people that I have represented before that have wished to be incarcerated so that they can get the help they need,” Fornoff said.

“Now that’s few and far between, but it has happened.”

James Farrell is a John Jay Rural Justice Reporting Fellow. This is an edited version of a story published this weekend in the Fremont Tribune, first in a two-part series exploring the intersection of mental health and the local criminal justice system. The full version is available here.


Experts Link Mental Health Issues to Spike in Honolulu Police Shootings

The number of police-involved fatal shootings in 2018 has doubled to six, the most ever in recent history, prompting concern among criminal justice experts about whether they’re seeing an overall trend of more violence in the Aloha State. 

When  Hawaii’s new police shooting board began its work this summer, it already had a full plate.Four fatal shootings were waiting to be reviewed by August, with three of them involving the Honolulu Police Department  (HPD). 

Two months later, the number of HPD-involved fatal shootings in 2018 has doubled to six, the most ever in recent history, prompting concern among criminal justice experts about whether they’re seeing an overall trend of more violence in the Aloha State. 

It is not known if any of the six men killed were using drugs or alcohol at the time of their deaths. HPD has declined to provide details because the cases are still under investigation and they declined requests to be interviewed about the shootings for this story.

For years, the police department has tried to address encounters officers have had with mentally ill and drug-addicted individuals. In 2006, the HPD began consulting with three on-duty psychologists when encountering someone who appeared to be mentally ill. By 2008, HPD officers had placed about 26,000 calls to the on-duty psychologists. This year, the department has been part of a new initiative to divert the mentally ill who have not committed a crime but appear to be in crisis.

Launched in April, the Law Enforcement Assisted Diversion program has yet to divert anyone. Out of the HPD came the Crisis Intervention Team (CIT) training. The concept has worked well for police departments that had growing numbers of officer-involved shootings. In Miami, for example, fatal shootings have gone down since 2010 and the number of mental health-related calls resulted in far fewer arrests, also saving millions of dollars for taxpayers.


Experts Link Mental Health Issues to Spike in Honolulu Police Shootings

The number of police-involved fatal shootings in 2018 has doubled to six, the most ever in recent history, prompting concern among criminal justice experts about whether they’re seeing an overall trend of more violence in the Aloha State. 

When  Hawaii’s new police shooting board began its work this summer, it already had a full plate.Four fatal shootings were waiting to be reviewed by August, with three of them involving the Honolulu Police Department  (HPD). 

Two months later, the number of HPD-involved fatal shootings in 2018 has doubled to six, the most ever in recent history, prompting concern among criminal justice experts about whether they’re seeing an overall trend of more violence in the Aloha State. 

It is not known if any of the six men killed were using drugs or alcohol at the time of their deaths. HPD has declined to provide details because the cases are still under investigation and they declined requests to be interviewed about the shootings for this story.

For years, the police department has tried to address encounters officers have had with mentally ill and drug-addicted individuals. In 2006, the HPD began consulting with three on-duty psychologists when encountering someone who appeared to be mentally ill. By 2008, HPD officers had placed about 26,000 calls to the on-duty psychologists. This year, the department has been part of a new initiative to divert the mentally ill who have not committed a crime but appear to be in crisis.

Launched in April, the Law Enforcement Assisted Diversion program has yet to divert anyone. Out of the HPD came the Crisis Intervention Team (CIT) training. The concept has worked well for police departments that had growing numbers of officer-involved shootings. In Miami, for example, fatal shootings have gone down since 2010 and the number of mental health-related calls resulted in far fewer arrests, also saving millions of dollars for taxpayers.


Solitary Used More Often for Inmates with Mental Illness: Study

The odds that mentally troubled prisoners will be sent to solitary confinement for misconduct are 36 percent higher than for those without mental illness, according to a University of Massachusetts study of data from a 2004 national survey.

Inmates with mental illness are more likely to be placed in solitary confinement than other inmates, and are more likely to be punished with administrative segregation compared with other less disciplinary actions, according to a study published in the Criminal Justice and Behavior.

Kyleigh Clark, a researcher at the University of Massachusetts, analyzed data from the U.S. Census Bureau’s 2004 Survey of Inmates in State and Federal Facilities, which questioned inmates on a wide range of topics including their behavior, criminal histories, personal backgrounds, and experiences within and outside of prison.

The survey also specifically asked inmates whether they have been diagnosed by a medical professional prior to incarceration with various mental disorders: depressive, psychotic, personality, manic/bipolar, posttraumatic stress disorder, anxiety, or any other disorders.

The researcher compared the experiences of those with mental illness to those without them and found that even though both groups most often lose privileges for misconduct, the odds of those with a mental illness being put in solitary confinement for misconduct are 36 percent higher than those without mental illness.

Furthermore, those with mental illnesses are 40 percent less likely to be given other, less severe disciplinary action, 27 percent less likely to lose privileges or be confined to their own cell, 23 percent less likely to be given extra work, and 19 percent less likely to be given bad time.

It is not clear why inmates with mental illnesses are disproportionately placed in solitary confinement, but one possible explanation the author suggests is that prison management may be paying more attention to those with mental illnesses, or more attention to the actions of those with mental illnesses, and this in turn results in more infractions and harsher punishments.

Relatedly, people with mental illness are viewed as dangerous to themselves and to others, the author explained.

“[And] because many institutions suffer from a lack of resources, space, and staffing, isolation of mentally ill prisoners can be seen as the only viable option in dealing with these inmates,” Clark added.

About 37 percent of inmates have mental illness, according to U.S. Department of Justice.

The researcher excluded inmates in federal facilities due to possible unmeasured factors in those prisons that may affect their use of segregation, such as intuitional structures. The sample was further restricted to those who committed at least on misconduct during their incarceration and were not missing data for mental illness and disciplinary action

The author argued that despite news stories outlining the problematic use of isolation for mentally ill inmates, the issues had not been extensively researched until now.

He said future research should investigate whether imposing solitary confinement on mentally ill inmates, even ostensibly for their own protection, is ultimately “counterproductive.”

“Multiple studies have shown that those with mental health problems may be more susceptible to the negative effects of solitary confinement, thereby creating a cycle in which mentally ill offenders are put in solitary confinement due to their mental illness, which is made worse by isolation, leading to further or worsening symptomatic behavior,” he wrote.

“Although solitary confinement may be considered a more economical or practical choice for containing these inmates, better mental health care can be more cost effective in treating their behavior.”

A copy of the study can be downloaded here.

J. Gabriel Ware is a TCR News Intern. He welcomes comments from readers.


A Suicide in Solitary: ‘They Gave Him the Tools to Kill Himself’

Texas’ Harris County jail is considered a progressive example of being attentive to mental health needs, with a suicide rate below the national average. But the recent suicides of two inmates point to systemic gaps in how the jail system handles prisoners in solitary confinement.

Sue and Eldon Jackson were childhood sweethearts. Growing up, they held hands at the roller rink and ditched school dances together. They almost got married at 17, but instead drifted apart after high school.

Then, 34 years later, he found her again on Facebook—and they thought they would start their happily-ever-after.

But then there was the meth addiction. The hurricane. The fight. The fire. The arrest.

And by April, Eldon Jackson wound up in the Harris County jail facing a 30-year sentence for arson. He’d lit their house on fire, then slit his own throat.

He came into jail with burns on his body and bloody lacerations on his neck, a visible reminder of his internal crisis. But, apparently, he didn’t get the help he needed.

He came into jail with burns on his body and bloody lacerations on his neck, a visible reminder of his internal crisis. But, apparently, he didn’t get the help he needed.

“I don’t want to die, but being in jail is too much for me,” the 61-year-old wrote in a letter to the Chronicle.

His mental state vacillated over the three months he penned the jailhouse missive, sometimes professing his love for Sue, sometimes lashing out at her.

But then early one morning in July—a day after jailers put him in solitary confinement to prevent repeated calls to his wife—he killed himself, fashioning a hand-made noose from the gauze used to treat his burns. His death was the first of two jail suicides in barely three weeks, at a facility that’s struggled to treat the influx of mentally ill patients coming through its doors.

The suicide of Jackson, a Navy veteran who’d long battled addiction, highlights cracks in the system—cracks that prison reform advocates hoped to fill with the 2017 passage of the Sandra Bland Act.

Named for the Illinois woman who died by suicide in the Waller County jail three years ago, the legislation did much to draw attention to the needs of mentally ill populations in the days immediately after their arrest, and to diverting them from jail in the first place.

But it did less to highlight the ongoing suicide risk weeks or months into a jail stay and failed to spark discussion about the problems of putting inmates having a mental health crisis in solitary confinement.

“We didn’t consider in a real way what happened here,” said state Rep. Garnet Coleman, D-Houston. “It’s just the truth of the matter—but we will. We will work to amend the law on this because we have to.”

‘You Don’t Turn Your Back’

At first, life together was great for Sue and Eldon. But a couple of years after they reconnected, he started keeping odd hours, making Walmart runs at midnight and foregoing sleep. She knew he’d been addicted to drugs once before, but only in retrospect did it seem indicative of a larger problem.

“It’s not that he was acting crazy,” she said, “it was just the hours.”

Together, they bought a house in 2013, in the same neighborhood where they’d grown up. Yet, around that time, Sue started suspecting he’d started using drugs again. At first, it was pills. But then, he switched to speed.


Happier times: Eldon and Sue Jackson in a family photo, 2011. Photo courtesy Houston Chronicle

“The next thing I know, I’m preferring the meth daily and everything is a giant train wreck just waiting happen,” he wrote.

But to Sue that wasn’t clear until Eldon got arrested on a minor possession charge, one that ultimately got tossed for lack of evidence. Just a few months later, his son —not a biological son, but one he’d raised nearly from birth—died of an opioid overdose in Florida.

Eldon fell apart. He stayed out for days, hung with shady characters, and started selling drugs. The following year, he got arrested again—and this time he went to drug treatment.

At first, Sue said, it seemed like he’d be OK when he got out. But afterwards, familiar faces started showing up at the door, and Eldon started disappearing again. He suspected she was cheating; she suspected he was cheating. At one point, she ended up filing for divorce.

“It just didn’t seem like things were going to change, and I was trying to get his attention,” the 60-year-old said. “But you don’t turn your back on somebody like that. You just don’t do it. If he was willing to get himself right I was willing to walk him through that.”

So they hung in there. Things didn’t get better—but they didn’t get worse.

Then Harvey hit.

A ‘Crisis’ in the Jail

The Harris County jail is often considered a progressive example of an urban jail attentive to mental health needs. Their suicide rate over the past decade— just over 16 per 100,000 inmates— is well below the national 15-year rate of around 42 per 100,000, according to Bureau of Justice Statistics data.

“More than 120,000 inmates are booked into Texas’ largest jail each year,” the sheriff’s office said in a statement. “While our inmate suicide rate is below the national average, our goal is a suicide rate of zero.”

To that end, Sheriff Ed Gonzalez created the Bureau of Mental Health and Jail Diversion. The jail launched two programs to help mentally ill inmates stay out of isolation and cut in half their use of solitary confinement over the past five years.

Still, the jail is ill-prepared to be the state’s largest mental health care provider.

A quarter of county inmates are on psychiatric medication, according to Harris County Sheriff’s Office spokesman Jason Spencer. There have been 15 suicides at the county lock-up since 2009, and staff members intervene in an average of about 10 suicide attempts per month, according to jail data.

“It’s no secret that we have an abundance of inmates who are in serious need of mental health care that we’re not equipped to give as a jail,” Spencer said. “We’ve been very transparent about that.”

Sometimes people still fall through the cracks. In 2014, the jail saw a string of three suicides.

That same year, news broke of a mentally ill inmate who’d been left wallowing in a solitary cell full of bugs and feces, a supervision failure that sparked outrage and dealt a harsh blow to then-Sheriff Adrian Garcia’s campaign to become Houston’s mayor.

In 2015, a mentally ill death row inmate back in county for court killed himself in solitary confinement, using shoelaces to form a noose. Then in 2017, the jail announced procedural changes after the highly publicized suicide of a 32-year-old whose family alleged he did not kill himself.

And, just three weeks after Eldon’s death, another Harris County inmate died by suicide. On Tuesday, Debora Lyons—who’d been jailed on $1,500 bail for a felony theft charge—hanged herself in a common area of the 1200 Baker Street jail just before 7 p.m. It’s not clear whether there were other inmates or guards in the area or why no one stopped her. The jail hasn’t offered clarification, citing an ongoing investigation.

Once officers found her, the 58-year-old was taken to the hospital, where she died Wednesday—the same day she was granted a personal release bond to get out of jail.

“We have a mental health crisis in the county jail,” Spencer said, “one that the state’s aware of but has not addressed.”

‘Not the Person I Fell in Love With’

When Hurricane Harvey hit in 2017, it flooded the Jacksons’ home with five inches of water, leaving them with a daunting task familiar to countless Houstonians: rebuilding their lives without flood insurance.

“It was just overwhelming,” Sue said.

Eldon, always a fix-it man, decided to do the repairs himself. But with all the work in front of him, the drug problem just got worse. He stayed up for days at time, sawing and hammering at all hours of the night.

And Sue’s chronic lung illness got worse while living in the half-finished, flooded-out single-story home. So she and her granddaughter moved out.

“It gave him free reign to do whatever he wanted to do,” she said.

By the time things were ready for Sue to move back in last December, Eldon was a changed man.

“That was not the person I fell in love with,” she said. “Drugs took over his body and his mind completely.”

Eldon Jackson

Eldon Jackson prison photo. Courtesy Harris County Sheriff’s Office

After a fight with Sue, he was arrested on a misdemeanor family assault charge in March, then released with a protective order in place barring contact.

Despite that, they kept talking, and stayed in touch. Eventually, he asked her to drop the charge.

“I told him I’m not doing that, I’ve done it too many times,” she said. “You need to figure it out that what you do is not OK.”

Then, he showed up at the house one day in April, “completely crazed” and threatening to burn the place down.

When police arrived, Eldon ran to the back of the house and holed up in the still-unfinished master bathroom, shouting suicide threats. He slit his throat during the stand-off, but later claimed the fire that erupted was an accident, sparked when he dropped a cigarette. As the back part of their house went up in flames, Eldon slipped outside, leaving behind a trail of blood.

He passed out nearby and was arrested later, when—hoping to have him taken into custody before he bled to death—Sue lured him back home with a texted promise of a pack of smokes.

Gaps in the Sandra Bland Act

The Sandra Bland Act reformed the way jails handle mental health, but only at certain points of the process. In July 2015, the 28-year-old Bland’s death sparked national outrage, leading to a $1.9 million lawsuit settlement, a broader conversation about mental health in county jails, and state legislation. The measures passed—watered down considerably from what was initially filed—were guided closely by the specifics of her death.

Sandra Bland

Sandra Bland (via Twitter)

“We focused on diversion, we focused on people not being in jail if the reason they were there was because of their mental illness,” said Coleman, who authored the House version of the bill.

The measures also focused on suicide prevention at the front end, making sure inmates were screened better and courts were notified more promptly of mental health crises. But while it drew attention to the initial intake, the bill didn’t address ongoing treatment during incarceration, and did little to make sure jails are still attentive to burgeoning mental health needs in the weeks and months after initial intake.

“It didn’t deal with treatment or aftercare, and that’s a huge problem,” said state Sen. John Whitmire, D-Houston, who authored the senate version of the legislation. The act also didn’t address the use of solitary confinement with mentally ill populations or those having a mental health crisis.

“I’m really kicking myself,” Coleman said. “Had we been solving all of these problems when I did that bill, we would have covered this.”

No Help, No Phone

After his arrest, Eldon was taken to the hospital and later released to the jail, where staff did a risk assessment and decided to keep him in the infirmary on suicide watch, officials said. But because he denied being suicidal he was released to general population two days later.

That was in April. He did not get additional mental health help until July 18, when he saw a nurse for medication monitoring, officials said. Again, he denied having suicidal intentions.

All the while, he called his wife repeatedly, harassing her sometimes up to 20 times a day. So prosecutors went to court and asked that he be barred from using the phone. Judge Marc Carter agreed.

None of them had any idea the jail would enforce that order by placing Eldon in solitary confinement where, one day later, he would kill himself.

“I loved my husband and I still love my husband,” Sue said. “They put him into solitary confinement in the state of mind that he was in, and gave him the tools to kill himself.”

 Advocates flagged a number of possible problems in the events leading up to Eldon’s death. For one, some questioned the decision to deem him no longer a suicide risk so soon after his last attempt.

“If someone presents at the jail as suicidal or having suicidal tendencies, that person should be considered as an individual with mental health needs throughout their time at the jail,” said Annalee Gulley, policy director for Mental Health America of Greater Houston.

“You cannot say someone is suicidal three days ago and received treatment and is no longer at risk.”

Experts also questioned putting him in isolation, a potentially triggering event for those already in mental crisis.

“It exacerbates people’s existing mental health conditions,” said Greg Hansch, public policy director for the National Alliance on Mental Illness. “If a person is experiencing delusions, or hallucinations, being alone in a room by themselves is proven to often result in an exacerbation of those symptoms.

“And for a person who is depressed, it may increase hopelessness and despair.”

Like the first days behind bars, the first days in solitary confinement can be particularly high-risk moments, experts said. And, even though Eldon died at the Harris County jail, some saw his suicide as a reminder of larger systemic problems.

“I know how deeply committed the leadership at the Harris County jail is to mental health,” Gulley said. “If a breakdown can happen at a facility that is taking such measures to protect the mental health of its inmates, then I worry about other institutions.”

Keri Blakinger, a staff writer for The Houston Chronicle is a 2018 John Jay Langeloth Justice Reporting Fellow. This story was written as part of  her Fellowship project. The full version is available here.


How Neuroscience is Reforming Criminal Justice

New research into how the brain works is contributing to innovative strategies for reducing recidivism and developing alternatives to incarceration.

In the courtroom, testimony or evidence about abnormalities or damage to a defendant’s brain has been used to assess the level of responsibility for criminal behavior. But new research into how the brain works is contributing to innovative strategies for reducing recidivism and developing alternatives to incarceration.

The Mind Research Network, a non-profit based in Albuquerque, N.M., has been on the forefront of discovering how the brains of psychopaths and violent offenders differ from the average person’s.

Psychopaths make up a substantial part of prison population and are 20 to 25 times more likely to be in prison than non-psychopaths.

Dr. Kent Kiehl, a lead researcher for the network, says the research can help target appropriate treatment for example, for youths who have demonstrated violent behavioral  traits.

“This will improve our ability to predict which kids are high-risk, and how to individually tailor treatment to help kids change,” he told The Crime Report.

Using a portable MRI machine, Kiehl and his team studied and scanned the brains of roughly 4,000 violent juvenile and adults offenders from 10 prisons in two states over the last decade. The process yielded the largest neuroscientific database of violent offenders in the world.

One focus of the research was to examine the differences in the brains of juveniles who have committed homicides and juveniles who haven’t.

“Scanning is the easy part,” said Kiehl about the intensive process that goes into examining each inmate he studies.

In addition to scanning, Kiehl and his team conducted intensive clinical interviewing which examined IQ, past trauma and socioeconomic history, as well as personality.

Kiehl and the Mind Research Network have partnered with the Today=Tomorrow Program at Mendota Juvenile Treatment Center (MJTC).  in Madison, Wi., a cognitive behavioral treatment program that tries to help juvenile offenders with psychopathic traits, according to its website,  by educating “youth of the connection between their thoughts, attitudes, and emotions to their behaviors; to identify ‘thinking barriers’ and substitute responsible thinking, and to increase pro-social thinking and skills through modeling and role-play practices.”

The Today=Tomorrow Program at the MJTC has garnered some attention in recent years and has been covered in-depth by several outlets like NPR and The Atlantic.

Similarly, a study by the Douglas County Juvenile Department in Wisconsin found an 85 percent decrease in recidivism after one year among 48 subjects who went through the program, and a 94 percent decrease in recidivism after two years with a smaller sample size of 12 subjects.

The program is not likely to make these troubled juveniles into model citizens, but it tries to teach them a practical form of empathy that can help them avoid the impulse to commit violent or criminal acts.

Kiehl has been scanning subjects in the program three times during the process of treatment to understand mechanisms of change in those who don’t come back for repeat offenses.

Research like Kiehl’s is helping neuroscientists map out which brain regions should be targeted for treatment that will translate to improved behavioral and life outcomes.

This approach has been likened to working on a muscle that has atrophied from not being used.

“That’s the holy grail, to show which therapies and treatments adjust and help these circuits adapt,” Kiehl said.  “What is the brain mechanism of change, and is it sustainable?

“That’s what we’re working on now.  And if we figure that out we can get carefully derived measure of treatment efficacy.”

The concept of brain age and maturity is at the heart of Kiehl’s work with juveniles and psychopaths. Neuroscience can be a way to help determine how mature a person’s brain is more accurately than their numerical age.

Kiehl says that this is the essence of neuro-prediction.

“If you can measure the brain components that predict something rather than a proxy, like impulsivity, that circuit will indicate someone’s future impulsive behavior better than self-reports or other ways of measurements,” he said.

“Brain age is a better predictor if you re-offended than your date of birth.”

Drawing conclusions about people’s behavior based on brain imaging presents challenges and pitfalls for neuroscientists.

One danger involves a term called reverse inference, which can amount to researchers overestimating how much a certain area of the brain is involved or responsible for determining a specific behavior or cognitive process.

Kiehl argues that having strong data that can allow for good predictive power helps lessen the need for interpretation, and therefore creates the possibility of errors that stem from things like reverse inference.

Scientists may disagree about the exact function and role of the amygdala, for example, which has been linked to fear and aggression. But, according to Kiehl, “an amygdala deficit is an amygdala deficit.  We can academically argue about the interpretation, but what’s really important is the data.”

Other than the obvious benefit of reducing future violent acts and the damage that ripples from them, the kind of treatment offered at the MJTC can ultimately be much cheaper than it is to incarcerate people in the long run if reoffending can be reliably reduced.

A 2006 study in the Journal of Research on Crime and Delinquency found, “Over the 4.5 year follow–up, the return on the investment in the MJTC amounted to over 700 percent.”

Dr. Daniel Martell, a forensic expert at Park Dietz & Associates, and assistant clinical professor at the David Geffen School of Medicine at U.C.L.A., says that even though neuroscience is starting to tackle problems that were once thought to be unsolvable, like how psychopathy can be effectively treated, it has a long way to go before it’s ready for widespread implementation.

“We get great findings, but the problem is getting researchers to actually replicate those findings,” said Martell.

“We don’t really even have first generation studies to be replicated, so that’s where people like Kiehl are contributing.”

Martell went on to say that in terms of overall progress, “we’re still crawling.”

Dr. Francis Shen, an associate professor of law at the University of Minnesota who specializes in what’s called neurolaw, thinks that neuroscience will need to work in tandem with other developing sciences, such as genetics and psychology, in order to make the most valuable contributions to law and other fields.

Shen notes that neuroscience presently doesn’t show a lot of new ways to successfully alter the brain, and it is currently best thought of as a tool to aid in behavioral interventions, not only for juveniles but in other areas of law as well, such as poverty.

Shen used the example of poverty law to describe how neuroscience can make contributions to data we already have from other disciplines about the effects poverty has on people.

“We are starting to open the black box,” Shen said in an interview with The Crime Report. “We don’t need neuroscience to tell us that poverty’s bad, but neuroscience will let us understand the mechanisms allow for earlier and more targeted interventions and reframe discussion for policies.”

As mentioned above, neuroscience offers opportunities to extrapolate brain data and make claims about human behavior that aren’t justified.

However, Shen and Kiehl have both pointed out that neuroscience, as well as other human sciences, usually make predictions based on a spectrum.

Neuroscience deals in probabilities, and tries to predict the likelihood someone will behave a certain way.

Someone who is diagnosed as highly psychopathic may never actually commit a violent crime, although the probability they will is higher compared to the average person.

While one should always be wary of both the past mistakes that have been made in the name of brain science, and the obstacles that lie ahead, the work mentioned by Kiehl and others is trying to up-end the determinism that many fear results from a neuroscientific perspective of behavior.

Dane Stallone is a TCR news intern. He welcomes comments from readers.


Restoring Mental Competency: Who Really Benefits?

Today, states spend hundreds of millions on evaluating and restoring the “mental competency” of individuals to stand trial. But such restoration is a far cry from the comprehensive mental health treatment needed by defendants who many experts say should never have been incarcerated in the first place.

When Morgan learned that her son Tyler had been taken to the hospital after being accused of stealing someone else’s hamburger in a buffet line in January 2017, she had no idea that the incident would spark a 17-month-long entanglement with the local justice system.

The police officers who responded to calls about the buffet disturbance had found Tyler, who has a history of mental health issues and has been diagnosed with bipolar disorder with psychotic features, “acting strange and irrational,” and had called an ambulance to take him to a hospital. Though Tyler had gone voluntarily, he had struggled with an Emergency Medical Technician (EMT) on the ride over who he claimed had tried to give him a shot of antipsychotic medication.

He remained at the hospital emergency room less than 24 hours and was discharged early the next morning.

In March, Tyler received a felony summons for assaulting the EMT officer. He was ordered to appear in court but was never detained, “so he obviously was not a public safety risk,” Morgan said.

At some point late that summer, over eight months after the original incident, a request came that Tyler be evaluated for competency, and Morgan and Tyler (whose real names and geographical location have been withheld to protect their anonymity) heard the words “competency restoration” for the first time.

The Fifth Amendment right to due process has been interpreted to mean that in order for cases to progress, defendants must be competent to stand trial. That is, they must be capable of understanding the nature and the consequences of the charges brought against them and must be able to assist in their defenses.

As the number of mentally ill individuals enmeshed in the criminal justice system grows, more and more defendants are being found incompetent. (Note that competency is different from pleading innocent by reason of insanity, as the former refers to a defendant’s mental state at trial, while the latter refers to a defendant’s mental state when the crime was committed.)

In such cases, the court is required to “restore” the defendant to competency before the trial can proceed.

Competency concerns can be raised by any court actor, judge, prosecutor, or defense attorney, at any stage of a hearing. Though a state-appointed physician assesses the defendant and provides a recommendation, a judge makes the ultimate determination of whether someone is competent to stand trial or not.

Once a court orders that a defendant be evaluated for competency or that an incompetent person go through restoration, that individual typically remains in jail until those services are provided.

Competency is a legal term, not a medical one, and competency restoration is not the same as mental health treatment. Restoration’s primary goal is to coach defendants to get through a trial, teaching them about the roles of different court actors, the meaning of various charges, and the potential penalties they will face if convicted.

“Unless they’re from a foreign country, once they’re stable [defendants] can pretty much figure it out,” said Judge Steve Leifman, an associate administrative judge for the Eleventh Judicial Circuit Court of Florida and the creator of the Criminal Mental Health Project, a program that diverts people with mental illnesses who have committed low-level offenses from incarceration to community-based care.

Competency and Not-So-Speedy Trials

Though the Sixth Amendment guarantees defendants’ right to a speedy trial, that right often exists in name only in competency cases.

The speedy trial statute is meant to prevent the prosecution from engaging in careless or intentional delay that prejudices the defense. But because postponements due to competency issues are outside the prosecutor’s control, they do not count as speedy trial delays.

Mentally ill defendants, therefore, can sometimes languish indefinitely while they wait to be deemed competent.

In the past, competency was rarely an issue in courtrooms. For much of the 20th century, mentally ill people were isolated from society, siloed in the kinds of psychiatric institutions that inspired works such as One Flew Over the Cuckoo’s Nest and Shutter Island.

At their height, public psychiatric hospitals housed over 558,000 people, 0.3 percent of the nation’s population at the time. This proportion would translate to over 1.1 million individuals in today’s population, a far cry from the approximately 35,000 individuals with serious mental illness remaining in state hospitals, according to the Treatment Advocacy Center.

In the 1950s and 1960s, several abuse scandals and a movement that advocated treating individuals in their home communities set in motion a wave of de-institutionalization. Hospitals around the country rapidly emptied of patients and shuttered their doors.

But while many people lauded the closing of asylums and other psychiatric institutions, no real alternative sprang up to cater to the populations they had served.

Today, there are very few inpatient and long-term care beds available, even for those who could benefit from more intensive care. Mental health professionals put the ideal number of state hospital beds at about 50 per 100,000 people. In most of the states where data is available, there are roughly 10 to 12 beds per 100,000, Dominic Sisti, director of the Scattergood Program for Applied Ethics of Behavioral Health Care at the University of Pennsylvania, told NPR’s Jeremy Hobson.

“They’ve basically evaporated over the past 50 years in their capacity to take care of people on an inpatient basis for more than 72 hours,” Sisti said. “The community care movement has been successful in many contexts, but there is a population that still requires significant structured inpatient care. And this population doesn’t often get it.”

As hospitals closed without a concurrent investment in other forms of mental health treatment, mentally ill individuals began ending up on the streets and in trouble with the law.

“Many times, individuals who require intense psychiatric care find themselves homeless or in prison,” said Sisti.

“Much of our mental health care for individuals with serious mental illness has been shifted to correctional facilities.”

Released from Hospital Over Parent’s Objections

Tyler experienced for himself the lack of appropriate care available in the years leading up to his arrest. Morgan and her husband had Tyler involuntarily committed in 2010 and again in 2017 after he exhibited psychotic behavior and threatened to harm himself. Within days of his second commitment, hospital staff announced that his condition had stabilized and released him, despite Morgan’s pleas for longer treatment.

“He was physically shaking,” she said. “The drugs [Tyler had been medicated while hospitalized] were not agreeing with him.”

“I was frantic and got him in to a therapist, and the therapist on my request got him in to a psychiatrist right away, and he was hospitalized again within days.”

It was shortly after this third commitment that Tyler received the felony summons, which Morgan said “totally destabilized him.”

Approximately 20 percent of inmates in jails and 15 percent of inmates in state prisons have a serious mental illness, the Treatment Advocacy Center estimates. Based on the total number of inmates in this country, this means that there are roughly 356,000 inmates with serious mental illness in jails and state prisons nationwide.

Each of these inmates is held at an average annual cost of $33,274, according to the Vera Institute for Justice, if not more: the average cost of incarcerating a mentally ill individual is often much higher than the cost of housing a typical inmate.

Today, states collectively spend hundreds of millions on restoration for individuals that many experts say should never have been incarcerated in the first place. In Florida, for instance, the Tampa Bay Times found that the state government spends at least $50 million annually restoring the competency of defendants whose nonviolent crimes are so minor they never spend a day in prison.

Part of the issue is backlog. With the dearth of hospital beds, defendants who have been judged incompetent can wait months or even years for restoration, despite their being relatively few in number.

In 2014, the National Association of State Mental Health Program Directors (NASMHPD) conducted a survey on the forensic mental health services provided around the country.

Asked for an average daily census of inpatients who are incompetent to stand trial (IST), the 32 states that answered responded as followed: eight states reported a daily average of zero to 25 IST inpatients; seven states reported 26 to 75; nine states reported 76 to 150; three states reported 151 to 250; three states reported 251 to 400; and two states reported having a daily average of more than 1,000 IST inpatients.

To extrapolate to the whole country, this would mean that, on average, between 4,500 and 9,400 people are waiting for restoration at any one time.

NASMHPD also asked states to provide the average length of stay for defendants committed for being incompetent. Of the 30 states that responded, five said defendants wait an average of zero to 60 days; 13 states said 60 to 120; seven states said 120 to 180 days; three states said 180 to 360 days; and two states reported an average length of stay of over a year.

Every state surveyed reported that courts sometimes found defendants unrestorable to competency.

In 1972, the Supreme Court ruled in Jackson v. Indiana that defendants found unrestorable must be civilly committed or released, and that continued commitment for purposes of restoration would violate the Constitution.

Many states (69 percent, the survey found) do set a cap on length of stay, ranging from as little as 90 days in a few states to the maximum sentence specified by law for the most serious offense charged in others. But several studies suggest that courts in some places routinely ignore Jackson requirements and keep defendants hospitalized long after it is apparent that their prospects for restoration are dim.

Even when restoration is possible, certain states frequently flout their own legal parameters for how long incompetent defendants can be held. An investigation in December by the Denver Post found that people with mental illness who are accused of crimes in Colorado were waiting up to four times as long as legally permitted for evaluations and treatment because the system is so overwhelmed.

Similar reports have come out of California.

In 2015, the American Civil Liberties Union led a class action lawsuit charging that Washington State was taking too long to provide competency evaluations and restorations. In Trueblood v. DSHS, a federal court ordered the state to provide competency evaluations within 14 days of a court order, and competency restoration services within seven days of the evaluation.

In Tyler’s case, he was not originally held in jail, because the judge who ordered that he undergo competency restoration specified that restoration would be administered in his community. But although his state (Colorado) has a statutory requirement that counties provide outpatient competency restoration, Tyler’s hometown did not have such a program in place.

‘We Have a Delay Problem’

In February, 13 months after the original incident that brought him to court, the judge on Tyler’s case ordered him into custody and mandated that he be taken to the state hospital for competency restoration. The hospital, however, did not have any beds available. Instead, Tyler was placed on the restoration wait list and moved to a county jail.

Morgan described herself during that period as frantic.

“I called everybody,” she said. “I called the governor’s office, I called the state legislator, my representatives, my senator, the office of behavioral health, the state psychiatric hospitals, local providers, community mental health providers, I was in constant contact with the jail; no one would do anything other than say to me, ‘We have a delay problem.’

“I was appalled…they did nothing for him except hold him in a county jail. They were more than aware of the problem and simply failed to do anything for him.”

Finally, after 55 days on the waitlist, Tyler was placed in a jail-based competency restoration program that Morgan called “abominable.” Though she reached out to county officials multiple times, she was never able to get any information on what services or treatment Tyler was being provided, and he has been reticent to talk about his time there since.

After ten days in the restoration program, Tyler was told he was being referred for an early evaluation. The physician who evaluated him suggested that he was competent to stand trial.

“Coincidentally,” Morgan said, he had a status court hearing scheduled for later that week. The judge deemed Tyler competent, he pled to a misdemeanor, was placed on probation with a mental health component, and was released from custody on that day⸺more than 17 months after his initial arrest.

The delays in providing restoration would perhaps seem less egregious if ultimately defendants were given access to the services they need to get better. But in most places, restoration is a far cry from comprehensive mental health treatment.

“The court’s first response when somebody with a serious mental illness is arrested is not to treat them but to restore them, because that’s what all the rules and the law requires them to do,” Leifman said.

“Competency restoration is not treatment…it’s not about recovery, it’s not about getting well so that you can get out. It’s about restoring you so that you can be tried.”

This can mean anything from watching reruns of Law & Order to playing parts in scripted mock trials to becoming contestants in a courtroom version of Wheel of Fortune.

The Tampa Bay Times was able to obtain access to a state training video used in restoration in Florida that depicts “defendants” participating in a game show called “Trial and Error.” In the video, the contestant spins a wheel, which lands on first degree felony. She is asked what the maximum sentence is for a first-degree felony, and when she answers correctly, the host congratulates her: “You are now considered competent to return to court and face your charges. And we’ll see you next time right here on Trial and Error!”

Each time a patient watches the video, it costs roughly $8, the Times reports. Leifman and others think that money would be better spent on mental health treatment and social services.

“Most people who are ‘restored’ either have the charges dropped because the witnesses disappeared while they were in the hospital, they get credit for time served while they’re in there, which they’re entitled to, or they get probation,” Leifman said.

“Under all three scenarios, most people leave the courthouse without access to treatment.”

Because the mental illness that drove criminal behavior in the first place remains untreated, many defendants reoffend. Studies have found that individuals with serious mental illness tend to recidivate more quickly and at higher rates than similarly situated adults who are not mentally ill.

This means that the majority of people who go through competency restoration end up right back in jail.

Competency Restoration and the Mental Health Crisis

At the heart of the debate over competency restoration is the use of the criminal justice system to address a mental health problem. Competency restoration is not a solution to the mental health crisis, and often serves to exacerbate the issue further: because restoration is a right and health care is not, states often allocate money from the community health system to fund restoration programs.

“Ironically, you’re not entitled to treatment, but you are entitled to restoration if you’re charged with a crime,” said Leifman. “That’s the absurdity of our system.”

He added: “The states are making the problem worse by reducing community treatment by taking money away for the criminal mental health system and making it harder for more people to get services, and making it more likely that people get pushed into criminal justice.

“It’s created this terrible revolving-door problem, and the costs, both financial and human, are extraordinary.”

Morgan is still not sure what the costs have been for Tyler.

“He’s trying to do everything right,” she said. “But he’s so quiet. It’s too soon to tell.”

Since his release, Tyler has been seeing a therapist once a month per court order, as well as periodically checking in with his probation officer. He moved into a new apartment in the mountains near his family, signed up for exercise classes, and got a job with a local company where he works four days a week.

“Since he’s been out, I’ve tried to keep him focused on positive practical kind of stuff,” Morgan said.

“But he has been extraordinarily quiet. I think he has been traumatized. I don’t know yet. I really don’t know.”

Elena Schwartz is a TCR news intern. She welcomes comments from readers.


How the Justice System Can Learn From ‘Frequent Flyers’

For some Americans, health care and criminal justice are not two separate systems, but components of one big system that too often fails them. Frustrated cops call them “frequent fliers” because they regularly cycle between jail and hospital, so why do we  think we can fix one without the other?  

If a patient commits suicide within 72 hours of discharge, the Joint Commission (the accrediting body for hospitals) requires that a hospital conduct a “sentinel event” review.

That review will include a root cause analysis designed to uncover any mistakes or latent system weaknesses that contributed to the death.  It tries to learn whatever can be learned, and to report on steps aimed at preventing repetition.

But suppose the suicide is a “suicide-by-cop”:  A distraught former patient succeeds in forcing the police to shoot him in order to protect their colleagues or a hostage or a bystander.

Then, the familiar mechanisms of the criminal justice system will automatically activate too.

There will be a homicide investigation and a coroner’s report.

The performances of the officers who pulled their triggers will be examined by prosecutors and department officials.  Did the cops have another choice?   Did they act in self-defense? Was the shooting “within policy”?  Is prosecution called for?  Discipline?

Currently, the National Institute of Justice (NIJ) and the Bureau of Justice Assistance (BJA) are providing support (through a technical assistance grant to the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School) for state and local criminal justice systems that want to go beyond the typical punishment-oriented reviews of the practitioners on the sharp end of the system, and to conduct “sentinel event” reviews of their own derived from the medical model when something goes wrong.  Jurisdictions are being recruited.

This will be a new thing in criminal justice.

These inquiries are focused not only on the choices of the individual cops, or forensic scientists, or lawyers, implicated in a surprising outcome, but rather on the whole constellation of system factors.

Like the hospital reviews, they ask not only “What happened?” but also “Why did it happen?” The goal is safety, and not just the safety of suicidal people, but also of the police who are forced to confront them—officers who, even if they survive their encounters, are traumatized by the experience.

So, in a criminal justice “sentinel event” review of a suicide-by-cop the role of training and supervision could be examined.   Was the cop trained in de-escalation techniques and equipped with non-lethal options?  Did the department have a Crisis Intervention capacity?

Had the 911 dispatcher gathered⸺and then conveyed⸺the useful information?  To the right people?  If not, why not?  How was this fatal situation created?  How can it be avoided?

These are system-oriented  event reviews, not personnel-focused  performance reviews; they look forward,  and they  aim at prevention, not at blame.

Are two reviews (or even three, if your city or state has opted into the NIJ/BJA  Sentinel Event effort) better than one?

An innovative recent study in Camden, N.J., (reported in The Crime Report by two of its leaders) casts doubt on that proposition.

In fact, the Camden findings (in my opinion, anyway) argue that we don’t need multiple parallel studies, but rather unified, collaborative learning reviews that enlist not only medical and criminal justice stakeholders working together, but members of the communities and the sub-groups they serve.

We need these learning reviews not only for the spectacular officer-involved fatalities, but for the “high frequency/low impact” missteps characteristic of daily criminal justice life in what a recent book called “Misdemeanorland.”

See: The Crime Report’s Q&A with Issa Kohler-Hausmann, author of “Misdemeanorland.”

The Camden study, conducted by the Camden Coalition of Healthcare Providers with support from the Laura and Jay Arnold Foundation, broke down the walls of multiple data silos in healthcare and criminal justice in Camden and used the numbers to illuminate the lives of a specific group of individuals entangled with both sets of practitioners.

To pull just one telling statistic from among the study’s many: 67 percent of the people who cycled through Camden’s Emergency Departments over the course of the study also cycled through its criminal justice system.

What I think the members of this group—“super-utilizers” to the public health practitioners, “frequent flyers” to the cops—could tell us is that from their perspective, health care and criminal justice are not two systems.  For frequent fliers, health care and criminal justice constitute one big system that dominates their daily efforts to survive.

It is pointless to think of a jail or an emergency room as “upstream” or “downstream.”  Each is simultaneously upstream and downstream of the other.

People who think about safety in other contexts draw a contrast between a complicated system and a complex system.  A jet airplane is a very complicated machine, but it can still be thought of in linear, sequential terms:  if x component fails, then y will happen.  So, find and fix the component.

But jet airliners in operation “become complex because they are opened up to influences that lie way beyond engineering specifications and reliability predictions.”   This is true of hospitals, police departments, prosecutors’ offices, courts, and correctional institutions too.

It looks even more true once you realize that these complex entities are themselves only elements of a more complex encompassing systems environment.

Decisions made in one part of this swirl are seldom automatic “causes” of effects in in other parts; usually they are “influences” that affect the probabilities, not switches that turn things on or off.

Look at the problem of how to launch “Abe,” one of the patient/defendants described by the Camden studies leaders, into a safe, healthy, law-abiding life (that drains fewer public resources) and you can see that you are not dealing with a simple mechanical challenge.

Over five years Abe was treated in emergency departments two dozen times, arrested more than fifteen times:  “A seemingly unbreakable cycle of hospital stays and arrests and incarceration, punctuated by periods of housing instability and homelessness, all of which appear to be driven largely by untreated substance abuse and lack of social supports.”

Some framework for collecting and disseminating cross-sector data will be an important step in breaking the cycle.  The authors of the Camden study are certainly right when they say that their work shows that there is “enormous value in fostering collaborative data sharing among agencies.”

But we should probably remember that data-measuring outputs casts only a pretty oblique light on processes. These processes, involving “lived realities of the people in the criminal justice system,” have to include the “lived realities” of the frontline emergency room nurse, patrol officer, sheriff, prosecutor, and judge who are making the decisions that keep Abe on his treadmill.

It would be surprising if these frontline practitioners greeted the Camden study’s findings with astonished shouts of “Eureka!”  The overlap of homelessness, medical issues, and criminal contacts is something they confront all day, every day.

(Innovative efforts such as the San Francisco Wraparound Project violence prevention initiative at Chan Zuckerberg San Francisco General Hospital have recognized the criminal/hospital nexus as a vital point of entry for community safety.)

Data-derived policies, even very good ones, won’t dispense with the people who have to execute them.  The reality is that the work the frontline workers actually do will seldom be identical to the work that policy wonks are able to describe in advance.

There is, as the Camden study notes, a tremendous variety in frequent fliers’ experiences.  That variety requires innovation, improvisation, choices between conflicting rules, and sometimes even rule-breaking—in short, workmanship—from practitioners.

With all of these actors involved, deciding how to rescue “Abe” is a complex socio-technical riddle, not a straightforward mechanical repair like mending a clockwork.

At 4:30 on some Friday afternoon, with the docket list still bulging, it made sense to each member of the “courtroom workgroup” of prosecutor, defender, and judge to offer Abe a plea to a greatly reduced charge and a sentence of “time served.”

It made sense to Abe to accept the offer and walk out the door.

That this was a mistake becomes clear only later (and in a different place, to different people) when it turns out that the record of conviction meant Abe is booted out of the family home in public housing that provides social support and allowed for medical continuity, or when it disqualifies him for a job or a program.

One of the things we can learn from looking at the general safety literature is that all of the decisions that we now deplore in hindsight as choices that kept Abe cycling were “locally rational” when they were made.

They may not have been heroic, prescient, or admirable, but they made sense to frontline people who were trying to get through their days.  Going “down and in” to focus tightly on one practitioner’s decision won’t be enough; we also have to go “up and out” to see why that decision was made. Leave the same inducements in place and the next practitioner may do the same thing.

When Diane Vaughan looked at the disastrous space shuttle Challenger launch decision she rejected the conventional view of amoral NASA administrators overriding safety concerns to meet the budgetary and political pressures driving the launch schedule.

Vaughan found that the decision was “a mistake embedded in the banality of organizational life.”  It had roots in the “normalization of deviance,” the accumulated drift, by small workarounds, informal work rules, and locally rational adaptations into accepting dangerous risks.

It was supported by a kind of structural secrecy:  that is, by “the way that patterns of information, organizational structure, processes, and transactions, and the structure of regulatory relations systematically undermines the attempt to know.”

Some part of this pattern as it applies to a frequent flyer is made up of formal confidentiality regulations:  the nurse is bound by HIPAA rules, the public defender by attorney-client privilege.  But more derives from mutual unfamiliarity: from a lack of insight into what counterparts in medicine (or public safety) are trying to do, why they are trying to do it, and how they are constrained by their environments.

Look at an avoidable suicide-by-cop or a re-entry failure or medical crisis dooming a frequent flyer like Abe to another downward loop on his spiral and you’re likely to see something of the kind.

Collecting and marshaling the data is crucial, but something like Vaughan’s ethnographic approach—complementing the data with the narratives of individual events and the “thick data” those narratives can provide—is crucial too, if we want to renovate a system that is currently keeping secrets from itself.

There is no reason to choose between, say, the Arnold Foundation’s data analysis and Jennifer Gonnerman’s rich narratives of Kalief Browder’s story.  They inform each other.

James Doyle

James Doyle

But to do this we need everyone’s perspective and on a constantly shifting variety of events.  Narratives confined in silos are no better than data confined in silos.

If everyone is doing “sentinel event” reviews anyway, why not do some together?

Editor’s Note: For another perspective on the Learning Review Process, see Ivan Pupulidy in The Crime Report, “Making Sense of Justice Tragedies.”

James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.


Austin PD Addresses Lingering Trauma Officers Can Face

Involvement in traumatic events like shootings can lead to years of anxiety and worse for police officers. Austin Police Chief Brian Manley, acting on an increase in alcohol-related incidents among officers this year, says he has made their mental health a priority.

Police officers often endure years of anguish after they are involved in shootings and other traumatic events. The stress, trauma and burnout from these life-or-death encounters have prompted the Austin Police Department to examine whether it provides the necessary resources to police and civilian staff, reports the city’s American-Statesman. Seeing an increase in alcohol-related incidents among officers this year, Chief Brian Manley has made mental health in the department a priority. He has commissioned a group of experts — including physicians, wellness specialists, peer-support officers and chaplains — to look at how to identify symptoms of post-traumatic stress and how to prevent and treat mental health crises.

“This is an issue that is problematic for police departments across this country,” Manley said. “We recognize that there is probably more that we can and should be doing…We care about them as people, and I think that we have a duty to do everything we can to enhance their health and well-being.” During their career, an officer experiences an average of 188 critical incidents, including being beaten, shot at or threatened with a gun, a 2018 study by the Ruderman Family Foundation found. Law enforcement officers are five times more likely to suffer from post-traumatic stress in their lifetime than the general population, according to the report. First responders, including police and firefighters, also are more likely to die by suicide than in the line of duty, it found. “This is a career where you can’t unsee things that you have seen,” Manley said. “Every officer walks around with visions of things that they have experienced during their career. That impacts you.”


Did California Authorities Suppress Research on Sexually Violent Predators?

Evidence indicating that individuals imprisoned for sexually violent offenses have a low likelihood of recidivating was never made public, according to two California scholars─perhaps because it called into question the constitutional legitimacy of state laws making sex offenders subject to indefinite civil commitment long after they served their sentences.

State laws that allow sexually violent predators to be locked up even after they have served their sentences are based on questionable assumptions that they continue to pose a danger to society, according to a study published in the American Criminal Law Review.

The study focused on California where, according to the authors, research indicating that sexually violent predators (SVPs) are less likely to re-commit crimes than other offenders was suppressed because it challenged the constitutional legitimacy of the state’s SVP laws.

The research in the mid-2000s by Dr. Jesus Padilla, a clinical psychologist at Atascadero State Hospital, a California maximum-security institution that houses mentally ill offenders, found that just 6.5 percent of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility.

But the research was halted and its findings hidden in what, in effect, was an attempt to “bury” information that might challenge the constitutional basis for the $147.4 million program operated by the California Department of Mental Health that supervised the involuntary commitment of SVPs, the study claimed.

The authors, Tamara Rice Lave of the University of Miami School of Law; and Franklin Zimring, of the University of California, Berkeley, wrote they learned about the concealed study from a former public defender who is now a Superior Court judge in San Diego, and then contacted Dr. Padilla.

“Dr. Padilla was very responsive and gave us a detailed account of what had happened,” the authors wrote. “We then submitted a FOIA request to the newly created Department of State Hospitals (DSH). But we were told that they were ‘unable to verify any study on recidivism conducted by Jesus Padilla, PhD.’

“We shared DSH’s response with Dr. Padilla, and he sent us a packet of documents pertaining to the study including internal memoranda, emails, and the signatory page granting approval for the study.”

An examination of the study, which was originally commissioned to assess the value of clinically treating SVPs, revealed the lower recidivism rates—a result that surprised researchers at the time, but also paralleled the findings of a 2003 study by the Department of Justice’s Bureau of Justice Statistics (BJS) that showed 2.5 percent of rapists were rearrested for rape within three years of release from prison, and just 3.3 percent of child molesters were arrested for another sex crime against a child during that same period.

In contrast, during that same three-year period, the BJS researchers found that 13.4 percent of robbers were rearrested for robbery, 23.4 percent of burglars were rearrested for burglary, and 41.2 percent of drug offenders were rearrested for a drug crime.

The recidivism statistics call into question the entire basis for the involuntary civil commitment of sexual offenders, wrote the authors.

Currently, 20 states and the federal government have similar SVP laws, and as of 2016, there were 5,355 persons committed as SVPs across the country, with an additional 1,001 detained pending commitment, the study said.

Because the Constitution prevents a person from being punished multiple times for the same crime in criminal cases, the courts have enforced civil commitments in the cases of many SVPs, which allow for a post-sentence detention in an effort to prevent further offenses.

“We have no way of knowing the real reason why California halted the Padilla study and then tried to bury it,” wrote the authors. “Although our FOIA request asked why the study was terminated, we never received an answer.

“Perhaps higher-ups at DMH (the California Department of Mental Health) had not initially paid attention to the study because they did not expect the results….DMH may have realized the study had to be stopped because it threatened the legitimacy of the entire SVP program.

“The only constitutionally acceptable rationale for SVP commitment is that offenders are so dangerous that they must be locked away, and this study showed otherwise. If the SVP law were to be declared unconstitutional, it would threaten the $147.3 million annual budget DMH (and now Department of State Hospitals) receives for the civil commitment program.

“People have done far worse than bury a study for a hundred million dollars.”

The authors noted that the use of SVP laws was given the stamp of approval by a 1997 U.S. Supreme Court Case Kansas v. Hendricks, which accepted claims that SVPs are “extremely dangerous” and that their “likelihood of engaging in repeat acts of predatory sexual violence is high.”

In that case, defendant Leroy Hendricks “admitted that he was an uncured pedophile who could not control his desire to molest children.” But, as the authors argue, Hendricks does not represent the greater SVP population.

“If the Court had asked what the basis was for this conclusion, they would have been sorely disappointed,” the study says. “We searched the legislative minutes for the 1994 Kansas law and found no citations to data on prospective danger.”

The unwillingness to substantiate the claims may be be rooted in fears of inflaming public opinion, argued the authors. A 2010 national opinion poll found that 72 percent of respondents believed that at least half, if not most, of convicted sexual offenders would commit additional sex crimes later on, according to the study.

A separate study from the Washington State Institute (WSI) reported that recidivism rates were as high as 25 percent in Washington. But the authors note a variance in age demographics between WSI and Padilla’s studies, with WSI’s largely consisting of a younger demographic.

Data from the Department of Justice released in 2016 shows that recidivism rates among sex offenders for other non-sexual crimes was around 60 percent. Only 5.6 percent were re-arrested for rape or sexual assault.

“If SVPs are no different than the dangerous but typical recidivist convicted in an ordinary criminal case, then the state has no constitutionally permissible reason to continue locking them away,” the study says.

California’s use of indeterminate civil commitment means that it is unlikely that the state’s SVPs, most of whom are over 50, will ever be released, the study said—based on the presumption that the risk posed by an offender at 40 remains the same when he is 50, 60 “or even 90.”

The rediscovery of the Padilla study should spur California and other states to make it a requirement that SVPs are regularly examined to prove they are likely to recidivate—a system that California used before the onset of SVP laws, the authors wrote.

“The politics of crime and fear of sex offenders mean that someone like Mr. Hendricks, who is now 83 and confined to a wheelchair, will never prevail,” they added.

“The ironic result of allowing state governments to make up their own theories of prospective sexual danger and never to test their hunches goes beyond the wasteful and unjust incarceration of elderly men with histories of sex offenses.

“Detailed and careful empirical study could provide much better evidence of the age and other characteristics of persons who have significant offending risks.”

The authors called on the Bureau of Justice Statistics to resurrect and continue the Padilla study.

“Until such research is conducted, we will never know whether the true legacy of Kansas v. Hendricks includes not just unjust confinement but also an allocation of limited resources with no focus on populations of maximum danger.

“Justice and community safety demand the truth.”

A complete copy of the study can be downloaded here.

TCR News Intern Marianne Dodson contributed to this summary. Readers’ comments are welcome.