Behavioral health issues and the legal system: 5 fixes

Countless people as well as our local communities experience adverse impacts related to behavioral health and homelessness. The courts have done their best to develop ways to respond when people affected by behavioral health issues are accused of criminal conduct. 

It doesn’t make the news when people with behavioral health issues succeed after judicial intervention, but it is always newsworthy when there is failure, especially repeated failure by people who cycle in and out of the system. Community frustration is understood, but judges are even more frustrated because the behavioral health issues people are experiencing seem to speak louder than we do.

Our hope is to bring attention to a critical pinch point for failure and to propose tangible solutions. 

Some people who come to court are so affected by behavioral health issues that they cannot understand the proceedings and/or assist the lawyers in their own defense. In those cases, the law requires us to ask Western State Hospital to assess the person’s “competency.” The law and our constitutional values do not allow criminal charges to proceed if the person is determined to be “incompetent.” A finding of incompetency results in dismissal of the case. 

Problem No. 1 is the lack of availability of meaningful and organized intervention by behavioral health professionals when the affected person is released from custody after dismissal. 

If the case is dismissed and the person is in jail, the judge can order the person be held for an additional time period (72 or 120 hours) so other behavioral health intervention can occur. The person is then released back into the community after some intervention, but adverse impacts for the person and the community are almost guaranteed when a person found incompetent is released from custody without meaningful and organized follow-up intervention by behavioral health professionals.    

In district and municipal courts, a finding of incompetency does not end the case if the charge is considered a “serious offense,” the expert conducting the evaluation finds that the person could regain competence if they go through “restoration” treatment, and the judge finds a “compelling state interest” to order that restoration treatment. Restoration treatment includes medications, counseling, and other treatment designed to get the person in a mental state that allows them to understand the proceedings and to assist their lawyers. By law, after a hearing on the issue the judge can even force the defendant to take medications against their will if it will aid in restoration. The case can continue to trial if the person’s competence is restored, but the case is dismissed if restoration fails. 

Problem No. 2 is that Western State Hospital cannot meet the statutory deadlines for restoration treatment, which has resulted in the dismissal of cases and the release of untreated people back into the community. This then exacerbates Problem No. 1. In some cases, Western State is forced to pay monetary contempt sanctions because the affected person was forced to languish in jail longer than they should have while awaiting restoration.

Recently, we have been asked by the state Department of Social and Health Services to reduce the number of competency evaluations and restoration treatment orders that we enter. While that is a solution for DSHS, which is the administration that runs Western State, it would require us to look the other way when people are experiencing significant behavioral health issues. But worse, it would force people to plead guilty or go to trial when they don’t understand the proceedings against them (a violation of the Constitution’s Fifth Amendment due process) and/or are not be able to assist their lawyer (violation of Sixth Amendment right to counsel). 

DSHS is trying to provide outpatient restoration services as an alternative. However, most cases that meet the required compelling state interest test involve violent crimes with defendants who will not likely cooperate with outpatient restoration. This well-intentioned attempt to solve the problem does little to help the affected person or the community.

In sum, people with untreated behavioral health issues experience perpetual punishment because of our failure to implement a proactive effective strategy. Our communities are, in turn, punished by proxy when the same people commit the same crimes for the same preventable but untreated reasons.

Solutions? 

First, devote more resources to timely restoration and/or allow private mental health providers to perform restoration treatment. 

Second, make the length of the restoration process dependent upon the behavioral health issue instead of the crime.

Third, develop an organized and intentional regional network of treatment and services that focuses on the affected person’s needs and condition, but that also recognizes and prevents community impacts when the affected person is released from jail.

Fourth, require law enforcement, courts, jails and probation to refer the affected person to the same network to maintain continuity of care and to maximize resources.

Finally, provide peer support to each affected person to increase the likelihood of success. 

There are no panaceas, but we can and must do better for our communities and those suffering from behavioral health issues.

A group of municipal court judges meet weekly to address issues affecting municipal courts in Washington state. Including the authors, other judges who participated in this Op-Ed are: Federal Way Municipal Court Judge Brad Bales; Renton Municipal Court Judge Kara Murphy Richards; Kent Municipal Court Judge Mike Frans; Bellingham Municipal Court Judge Debra Lev; Eatonville and South Prairie Municipal Court Judge Joanna Daniels; and Sumner and Black Diamond Municipal Court Judge Krista White-Swain.