Over 100 people throughout Louisiana who have been criminally charged but found mentally incompetent to stand trial are languishing in parish jails — sometimes for months at a time — because there is no room at the state psychiatric hospital where judges have ordered they receive treatment.
While the Eastern Louisiana Mental Health System, Louisiana’s only forensic psychiatric hospital, has long struggled with capacity issues, the current backlog is worse than it has been in years. According to the Louisiana Department of Health and Hospitals, 139 people are in parish jails across the state awaiting a bed at the ELMHS in Jackson, Louisiana, for competency restoration services due to lack of bed space at the facility. Another eight individuals who have been found not guilty by reason of insanity are also awaiting placement at ELMHS.
Advocates and attorneys warn that extended stays in jail can exacerbate mental illness, leading people in custody to deteriorate further as they await care at the hospital. Eric Foley, an attorney with the Roderick and Solange MacArthur Justice Center, who along with Disability Rights Louisiana are representing people in jail who are awaiting transfer to ELMHS in a federal lawsuit against the health department, said that “people who have been ordered into ELMHS’s custody need prompt care in an appropriate setting designed to treat people with mental illnesses.” He also said that “jails lack the resources and therapeutic environment to care for such people, and lengthy stays in a jail may worsen conditions and delay case resolution.”
Barksdale Hortenstine, director of the Mental Health Unit at the Orleans Public Defenders Office, said that nearly 30 defendants in Orleans Parish have been ruled incompetent to stand trial and ordered to ELMHS in hopes of being restored, but are still in custody at the New Orleans jail — including some who have been awaiting transfer to the hospital for months.
“They’re just sitting there,” Hortenstine said. “Jail is a horrible place — it is maybe the worst place possible for someone with serious mental illness.”
The backlog also appears to put LDH in violation of a settlement agreement that was reached in 2016 as part of the federal lawsuit, which requires the department to admit people found incompetent or not guilty by reason of insanity to ELMHS or another mental health facility within 15 days of a court order.
Officials with LDH say that the backlog is primarily the result of COVID-19, which hit the facility hard in the early days of the pandemic and forced it to halt admissions altogether on four separate occasions. In addition, ELMHS created separate units to isolate new admissions as a precautionary measure, which “allowed for client flow to resume, but overall it reduced available beds,” department spokesman Kevin Litten explained in an email.
Litten said that earlier this month, ELMHS admitted nine clients from the waitlist, and are working with the state’s Division of Administration on “allocating new resources to begin expanding services, improve client flow and bed availability” — including expanding “external capacity” by 118 beds through a cooperative endeavor agreement with an outside provider, and transitioning some patients from ELMHS to group homes.
(Litten did not respond to follow-up questions regarding the expanded capacity, including where exactly the 118 new beds would be located.)
Civil rights attorneys with MacArthur and Disability Rights Louisiana, who have been involved in litigation with LDH for over a decade regarding the wait times for competency and not guilty by reason of insanity admissions, sought last year to have contempt proceedings initiated against LDH for violating the terms of the 2016 agreement, arguing that LDH had “failed to develop sufficient plans and procedures to adjust to the new realities of a world shaped by COVID-19.”
They also asked the court to reopen discovery in the case to seek information related to admissions, policies, and COVID-19 protocols at the facilities.
Middle District of Louisiana Judge Shelly Dick agreed to open discovery back up but found that “a finding of contempt would be premature until more conclusive evidence” emerged through that discovery.
This week, the attorneys said that they were “pleased” to learn that LDH had identified new resources to address the problem.
“We look forward to learning more in the coming days about LDH’s plans to comply with its long-standing obligations under the existing settlement agreement in the near term and improve care for these people,” said Foley.
Louisiana is not the only state that is failing to provide psychiatric hospital services in a timely manner to defendants found incompetent to stand trial. A report from Kaiser Health News earlier this year identified backlogs in Georgia, Indiana, Alabama, North Carolina, Colorado, and Texas — where the waitlist is now upwards of 2,500 people.
‘So they just wait’
The department of health has struggled with timely ELMHS admissions for people who have been found incompetent since at least 2010, when the Advocacy Center (now Disability Rights Louisiana), filed a lawsuit on behalf of a juvenile incarcerated at Orleans Parish Prison who had been waiting over six months for placement after being found incompetent. According to the lawsuit, in late 2009 there were around 104 people on the waitlist for ELMHS, and over half of them had waited more than six months.
After initial rulings in favor of the plaintiffs in the case, LDH agreed to enter into a consent decree that anyone found incompetent would be transferred to ELMHS within 2 to 30 days, depending on their needs. That agreement was in place for three years.
But in 2014, the Advocacy Center filed another lawsuit alleging that while wait times had gone down for people found incompetent, people who had been found not guilty by reason of insanity were now waiting an average of 188 days for placement at ELMHS after their cases were adjudicated. That year, following the termination of the original consent decree, wait times for people found incompetent also again began to creep up, and the Advocacy Center filed another lawsuit with similar claims to the ones made in their complaint four years prior, arguing that LDH had “resorted to the practices and policies that gave rise to the 2010 litigation.”
Those cases were eventually consolidated, and lead to the 2016 settlement agreement that requires admissions within 15 days.
Louisiana law dictates that criminal defendants lack the mental competency to stand trial when “as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”
That determination is made by a judge following a mental examination by a “sanity commission,” and a court hearing where prosecutors and defense attorneys can question the commission’s findings and present evidence related to the defendant’s mental health. If a judge determines that an individual is not competent to stand trial, and likely will not become competent within 90 days, they are required to commit them to ELMHS.
While state law is loose on when exactly someone needs to be transferred to ELMHS — it only requires that a hearing take place within 180 days if a defendant remains in jail for that long — attorneys have argued that delays violate defendants’ due process rights, and that the law is unconstitutional on its face by forcing defendants to be incarcerated for longer than necessary.
Hortenstine, with the public defenders, said that LDH does make some efforts at restoring competency for his clients while they are awaiting placement at ELMHS by sending out district forensic coordinators to work with people while they are still in jail. But he said that is rarely effective enough to restore someone to competency.
“Hospitalization is almost always required for a level of impairment that would cause incompetency,” Hortenstine said. “So they just wait. There’s just no room at the inn.”
In the meantime, because serious mental illness can make it difficult to follow the strict rules in a jail setting, Hortenstine said that his clients will frequently receive disciplinary write-ups, and have even accrued new criminal charges while awaiting placement at the hospital.
Despite the inability to see patients in a timely manner, Hortenstine praised the care that was provided to his clients at ELMHS, saying it was a major improvement over the treatment that they get in jail.
“There are significantly more doctors on staff, more social workers, and more mental health professionals on staff at the hospital,” Hortenstine said. “The difference between a prison and a hospital is that the focus of a hospital is the treatment of a patient, not the person’s detention, incarceration, and punishment. That’s a significant difference.”
