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Bed shortage leaves mentally ill in jail

Randy Hugh Smith is facing criminal charges, but he can’t stand trial.

He probably doesn’t even know he’s in trouble in the first place.

Dr. Mark Webb, a physician with Mississippi Neuropsychiatric Clinic in Ridgeland, said as much on May 9, 2017, after Lincoln County Circuit Judge David Strong ordered Smith to be evaluated to determine his competency to stand trial for felony charges of abusive calls to emergency services. Webb’s report made mention of severe mental illness, pointing out Smith is unable to understand the charges against him, was probably criminally insane at the time of his arrest and unable to communicate with his attorney.

Smith got immediate medical treatment and was sent to the Mississippi State Hospital at Whitfield on a civil commitment, where doctors recommended he return to the hospital’s forensic unit for treatment and competency restoration. Strong agreed, and ordered Smith to be committed there on July 17, 2017.

But Smith hasn’t been admitted.

It’s been 417 days since Strong’s order that Smith receive treatment, but Smith has spent that time as an inmate, not a patient, incarcerated in the Lincoln County Jail while he sits on a waiting list for one of the forensic unit’s 15 beds to open up. He’s not a criminal, he’s a sick man, and his confinement to the jail instead of the hospital is shameful, said Lincoln County Sheriff Steve Rushing.

“There’s a medical issue with him, not a criminal issue, but unfortunately when they don’t have a bed, they put them in jail, where they don’t need to be,” Rushing said. “He has to have treatment, but until they get bed space to give him treatment, he’s stuck at the mercy of Whitfield.”

Jailing the mentally ill is an old Mississippi problem, and while legal reforms and community mental health groups operating crisis centers have attacked and beat back the issue on the civil side, the state hospital’s tiny forensic unit keeps mental health patients charged with crimes stuck in holding patterns in county jails.

It’s another legal gray area where seemingly nobody’s right, nobody’s wrong and money — as always — is the problem and the solution.

“It all boils down to funding,” said Rushing, who serves as president of the Mississippi Sheriffs’ Association. “A few months ago I went to a committee meeting up at Whitfield, and they explained to us that they’re stuck with funding — they don’t have the funding for more beds. To me, there’s no reason somebody with a mental illness should be sitting in a jail instead of getting the treatment they need.”

A history of non-violence

Rushing doesn’t believe Smith is a criminal. He’s been in too much trouble to be a criminal.

Jail records show Smith has been arrested 35 times since 2004, with most charges being of the nuisance variety — public intoxication, disturbing the peace, failure to comply and resisting arrest. He’s been a troubled citizen nearly every deputy and paramedic in Lincoln County knows by name and sight, so familiar and common Rushing surprised himself when he checked the man’s records against the myth.

“Good Lord, there’s a whole page of calls on him — and another page, another page, another page. We’ve probably had 75 or 100 calls on him over the years on top of the times he’s been arrested,” Rushing said. “I’ve dealt with him the entire time I’ve been here as sheriff, and I’m pretty sure I dealt with him back when I was on patrol, and that’s been 15 years ago.”

Smith’s current charges stem from his arrest on Christmas Day, 2016, when he was walking along Hwy. 84 into Brookhaven from his camper out near the Franklin County line and got tired of the trip, calling 911 — again — and faking an emergency for a ride into town. He told the paramedics his bones were stressed.

Smith had been calling 911 almost daily for a couple of weeks, and had previously been found guilty of making abusive calls to 911 three times. Paramedics called for deputies, who arrested Smith and charged him with a felony.

Given his prior convictions, Smith could face a three-year sentence and a $10,000 fine for picking up the phone this time.

He was indicted on March 3, 2017, and head Lincoln County Public Defender Lesa Baker was assigned to represent him on April 11. It didn’t take long for Baker to realize Smith’s illness, and she filed a motion for a psychiatric evaluation on May 2.

“He’s not easy to communicate with,” she said. “He talks incessantly about things that aren’t relevant to his case, and very often talks about his military maneuvers and how he knows he’s being set up. I’ve spoken with his jailers repeatedly, and they tell me he speaks of things as if they’re happening currently, when it’s just not possible those things are happening in his life. It is not possible to have a rational, coherent conversation about his situation.”

Smith has never served in the military, Baker said.

So close

The court order for Smith’s evaluation went out on May 4, and Webb did the checkup on May 9. After the examination, Rushing called on Lincoln County’s Region 8 Mental Health Services to assess Smith, and Region 8 evaluators placed him in Central Mississippi Medical Center for acute inpatient care. Doctors at that hospital sent Smith for mental health treatment at Whitfield on a civil commitment. On June 28, doctors at Whitfield determined Smith did not understand the charges against him and placed him on a waiting list for the forensic unit.

Then, they sent him back to jail.

“He was physically at the hospital. I would have thought he could have received treatment at the time, and that was frustrating,” Baker said. “I mean, you’ve got him, why can’t you keep him?”

Whitfield’s inability to see Smith puts Baker in a tight spot.

If a normal defendant were batted around like Smith has been, she’d bombard the court with motions to dismiss the case, or strike a deal for a guilty plea that would likely result in a sentence of time served and get the defendant sent home. She can’t enter a guilty plea when Smith doesn’t understand what it means to be guilty, and can’t go on to trial when he doesn’t understand why there’s a trial taking place.

Anyway, Smith barely has a home.

Baker said Smith, 43, lives in a camper with no electricity nor running water, with no one to look after him. His father, a military veteran, is deceased, and last anyone heard from his mother she had suffered a stroke, been diagnosed with cancer and placed in a nursing home. Smith’s only remaining family are his grandparents, who are in their late 80s and just can’t handle him anymore.

“Some lawyers would say I’m not supposed to be his best-interest attorney, but if he were released tomorrow, where would he go?” Baker said. “If he were released tomorrow, would he be safe? I don’t know. He deserves mental health treatment. He deserves to be treated like a human being. The jail is not the appropriate place for him, but right now it’s the only vehicle we have to get him to the state hospital.”

Making the best of what’s around

But there’s no room at the state hospital.

The Mississippi State Hospital Forensic Service is a 35-bed unit that provides mental health services to patients who have been criminally charged. Twenty of the beds are reserved for people who have been found not guilty by reason of insanity, and the remaining 15 beds are for treatment and competency restoration for pre-trial circuit court defendants like Smith.

After 417 days, Smith is No. 14 on the waiting list for the forensics unit. There are 84 people awaiting admission to the unit statewide.

“The limited bed space of the unit is a major factor in delays in receiving evaluations and restoration services,” said Adam Moore, a spokesperson with the Mississippi Department of Mental Health. “However, it is important to note that Mississippi State Hospital serves significantly more people than those who are ordered to the forensic services. In Fiscal Year 2018, the hospital provided acute psychiatric service to 1,030 people. A total of 69 people were treated on the Forensic Service.”

The number of forensic beds available hasn’t changed in 30 years, though the department has asked lawmakers for more money to expand the unit to 60 beds. The requests have gone nowhere, and instead the state mental health budget has been cut.

The department of mental health is working on a $16 million renovation plan — $1 million in bond money and $15 million found by “streamlining services” — to renovate an existing building on the Whitfield campus to serve as a new forensic care facility.

“Based on the architect’s recommendation, in the current fiscal year DMH will be using existing funds to renovate building 63 on the MSH campus to become a 60-70 bed Forensic Services Unit,” Moore said. “This will double the current forensic services bed capacity. DMH’s goal is to improve the safety of the unit and increase bed capacity for defendants in need of inpatient competency evaluations to improve the wait list.”

The department of mental health is looking at other projects to free up forensic beds. Kathy Denton, public relations director for the department, said lower-risk forensic patients at Whitfield will be transferred to another unit previously used for civil commitments after the unit is “hardened” to meet security requirements.

“This program is intended to eventually facilitate the addition of 21 more pre-trial forensic beds, to increase that number from 15 to 36,” she said. “This transition requires a hardening of the existing civil unit and the allocation of additional professional and service staff for forensic purposes, and for the provision of clinical care to the increased number of forensic admission patients.”

The cost of doing business

Raising the forensic bed total to 36 would knock out nearly half of the waiting list. In order to comply with the law of the land, the time defendants are on that list will need to come down — way down.

Federal courts examining the plight of mentally ill defendants awaiting treatment have said 14 to 30 days is on the fringe of acceptable, said Cliff Johnson, director of the MacArthur Justice Center at the University of Mississippi School of Law.

“In Mississippi, we’re not even close to doing what the Constitution requires,” he said. “We’re aware of hundreds of people in Mississippi who are in county jails awaiting mental health services of one variety or another at the state hospital.”

Johnson referred to several issues that prevent the timely treatment of the mentally ill, but always circled back to the one, all-encompassing factor that drives policy in Mississippi.

Money.

“So, you can have conversations about how important it is to provide mental health services, but that talk doesn’t amount to much unless you fund it,” Johnson said. “I think the Legislature has some degree of mistrust for the department of mental health, because they think the department hasn’t always used its funds in a productive manner. And you have frustration on the part of the department of mental health because they think they’re asked to do impossibly more tasks than they can with the funding they receive.”

The department of mental health’s funding has trended down in recent years. Lawmakers appropriated the department $626 million in 2015, $619 million in 2016, $591 million in 2017 and $586 million earlier this year.

“These issues highlight the real challenge in Mississippi, and that is funding our corrections system in a  manner that allows us to be constitutionally compliant and provide the kinds of services that recognize the humanity of the individuals incarcerated,” Johnson said. “Failure to do that also makes no sense from a public safety perspective — these individuals are coming back into our communities, and they’re either coming back as healthy, productive citizens, or they’re coming back sick, and mentally ill, and angry, and frustrated, and non-productive. The easy route is to simply say lock ‘em up, throw away the key and dismiss them as bad people who deserve what they get. That is neither legal nor good public policy. In many ways this is a moral crisis, in this, the most religious state in America.”

Let’s try something else

Without the money, judges, lawmakers and mental health caregivers are looking for other ways around the problem.

The department of mental health is piloting a Community Restoration Program in select counties to begin restorative treatment for defendants waiting in jail, though Johnson said the MacArthur center rejects the notion that proper mental healthcare can be provided in a jail setting. The Mississippi Supreme Court’s reformative Rules for Criminal Procedure also give judges the option of ordering civil proceedings for mentally ill defendants who haven’t received competency determination “within a reasonable time” after a commitment order.

In Smith’s case, the competency determination was made quickly.

At least two lawmakers in 2018 tried to codify the option with the Forensic Mental Health Act — District 23 Sen. Briggs Hopson, R-Vicksburg, had his bill pass the Senate unanimously and die in a pair of House committees, while District 39 Sen. Sally Doty, R-Brookhaven, had her version stall in Senate committees.

“We really don’t want someone with mental health issues to be the responsibility of law enforcement, although that’s how it ends up a lot of the times,” Doty said. “We introduced the legislation, knowing any legislation like that takes a couple of years. We have short legislative sessions, and sometimes we have a lot of good ideas we just don’t have time to get flushed out.”

District 92 Rep. Becky Currie, R-Brookhaven, this year authored House Bill 419, which would have created a statewide system of mental health courts that would function much like the state’s drug courts — mentally ill defendants could have their charges dropped if they completed the new court’s processes, which would have included court-ordered monitoring and evaluations.

Currie’s bill called for $3 million to implement the courts. It passed the House 116-1, then died without action in the Senate.

It is unclear if mental health courts could provide a lane of redemption for Smith. Currie has worked with Baker and Rushing on Smith’s behalf, pestering the state hospital with phone calls, trying to get him admitted for treatment.

She is one of the lawmakers Johnson called “mistrustful” of the department of mental health, and has been since she was first elected a decade ago, criticizing the agency’s priorities and spending habits. She rejects the notion the department needs additional funding, saying the Legislature has sliced the department’s budget to compensate for a large staff reduction made to comply with Medicaid rules requiring states to split up healthcare for the intellectually disabled.

“We reduced their budget because the federal government came in and made them discharge a lot of patients,” Currie said. “They had a lot of empty beds and reduced their number of employees, which takes me back to this — they’ve just been sitting there with 15 forensic beds for the entire state, which is just ridiculous. We got Randy up to No. 14, but who’s No. 56 waiting in jail? His civil rights have been violated because of the failure of the department of mental health.”

Maybe next time

In the meantime, Smith will wake up tomorrow in the county jail on Day 418 since his court-ordered treatment. It will also be the 623rd day since his arrest.

Rushing keeps Smith in a room with five other inmates, the smallest holding cell he has available. Jail staff make sure he takes his medication, and Region 8 mental health professionals evaluate him regularly.

“He hasn’t been a violent inmate,” Rushing said. “But when you talk to him, you know he needs some treatment. But we’re at their mercy — they tell us when to transport. If they don’t have bed space, we can’t just drive him up there and leave him at the gate.”