The Appeal: Underfunded mental health treatment programs mean people wait for open spots from jail cells

As a public defender in New York City, I once represented a woman accused of felony assault on a police officer. The charge was serious, but, given that the incident had sent her directly to the hospital and resulted in no injuries for the officer, combined with the lack of evidence against my client and the fact that she was transgender—making her a likely target for police abuse and harassment—I was reasonably optimistic about our chances of winning at trial. But her bail was high, and going to trial meant her waiting for weeks or months on Rikers Island, where she was housed with men.

Every day brought taunts and abuse, so she opted for solitary confinement. At Rikers, she was also deprived of necessary mental health, drug, and medical treatment. The prosecutor’s only offer required years of prison time, but the judge made a different offer: Plead guilty and walk out of jail right away, with the promise to complete a residential treatment program. My client jumped at the offer because she was desperate to get out. She chose not to take the case to trial because, although she did not want to stain her record with a violent felony offense, she could not stand to be at Rikers another day. I couldn’t blame her.

But she didn’t get either. Despite pleading guilty, my client came back to court week after week, month after month, waiting for a bed to open up at a treatment facility that could meet her needs. The social worker on the case and I made daily (and nightly) calls, visited facilities, chased down every option, desperate for a free bed. According to the plea agreement, my client did not need to be incarcerated. But there she was, on Rikers Island for months, waiting.

Now, a lawsuit brought by the Legal Aid Society and Disability Rights New York is alleging that people who suffer from mental illness are regularly held months or years past their release dates in New York state prisons because appropriate housing is not available. One plaintiff was released from prison in September 2017, but “though he is technically free, he is still confined to a cell because of a Kafkaesque bureaucratic dilemma: The state requires people like him to be released to a supportive housing facility, but there is not one available,” writes Ashley Southall for the New York Times. The lawsuit seeks to force Governor Andrew Cuomo to address a shortage of housing for people with serious mental illnesses who need help adjusting to life outside prison. “The men are no longer being held in prison because they committed offenses, their lawyers argue, but because the state has determined they are likely to become homeless once released—a practice they contend amounts to discrimination under federal civil rights laws.” [Ashley Southall / New York Times]

The lawsuit does not ask for the six men to be freed; instead, it asks the state to remove “the only barrier to their release” by creating more supportive housing for mentally ill people being released from prison. The plaintiffs cite a 1999 Supreme Court ruling, Olmstead v. L.C., “which held that public institutions must provide community-based services to people with mental illnesses who need and desire them,” writes Southall. The “deinstitutionalization” movement focused on taking people out of psychiatric hospitals and placing them in settings where they can participate in society. But as psychiatric hospitals closed and law enforcement expanded, more people with mental illness wound up incarcerated. Treatment programs in prisons and jails are inadequate and underfunded. Cuomo committed to building 20,000 new supportive housing units, and state lawmakers have allocated $2.6 billion to create the first 6,000 units by 2021, but, according to the lawsuit, the Office of Mental Health has neglected requests from counties across the state to build additional housing for former prisoners with mental disorders. “Such housing programs, where residents receive psychiatric care and learn skills like cooking and using mass transit, offer opportunities to participate in public life that prisons do not, mental health advocates say.” [Ashley Southall / New York Times]

Across the country, people with mental illness are held in cells for lack of treatment options. In Minneapolis, a man with severe mental illness was held in the county jail for 92 days last year without treatment “because of a severe and worsening shortage of beds in state psychiatric facilities,” according to the Star Tribune. Charges of disorderly conduct were dropped but he remained in custody for months, while his mental state deteriorated. At one point, Hennepin County Sheriff Rich Stanek wrote a “strongly worded letter” to the governor, demanding that the man be admitted to a psychiatric facility immediately. “This will continue to go on, and people will continue to be pushed aside,” Stanek said. “The state does not have the capacity and is not prepared to deal with those who suffer from severe mental illness, and they don’t appear willing to do much going forward.” A 2013 Minnesota law that requires a psychiatric bed be found within 48 hours for any incarcerated person determined to be mentally ill backfired, resulting in an influx of court-ordered admissions, causing wait times to spike. [Chris Serres / Star Tribune]

In Nebraska, where wait times for incarcerated people who need mental health treatment are over two months in many places, state legislators have argued that the state psychiatric hospital and community programs need more funding. The funds for community centers “have been cut and cut and cut,” said one state senator. “We’ve done this to ourselves. We’ve heard providers come to hearings saying they need more money and everyone throws their hands in the air.” [Nancy Hicks / Lincoln Journal Star] In Alaska last fall, people were sent from the state-run psychiatric hospital to jails, amid workplace safety fears and staffing shortages at the hospital. “It is shocking and outrageous that any person with an illness could be diverted from a hospital to a jail for evaluation and treatment,” said Stephanie Rhoades, a retired Anchorage Superior Court judge who founded the state mental health court. “There is no way that we would treat a person with a heart attack in this manner if the medical hospitals were full.” [Devin Kelly / Governing]