Iowans found incompetent for trial wait in jail for treatment, their mental health ebbing

Part one of a series.

When Iowa criminal defendants are found not competent for trial, that doesn't mean their cases are over.

In fact, it can be just the beginning of a long ordeal. Mentally ill Iowans are spending many months, or even years, ensnared in a bottlenecked mental health system, often far longer than their punishment would be if they were convicted. Some courts in other states have found such waiting periods violate defendants' constitutional rights.

"From a human rights perspective or human perspective, you don't want to see people sitting in jail, unmedicated, unable to make good decisions, unable to take care of themselves, because we can't find a bed," said Dr. Tracy Thomas, an Ames forensic psychologist who frequently conducts competency evaluations for Iowa defendants.

Iowans are found incompetent to stand trial when mental disorders prevent them from "appreciating the charge, understanding the proceedings, or assisting effectively in the defense." They must be treated and restored to competency before their cases can proceed. But the state has a significant backlog at the two facilities that currently provide competency restoration treatment, leaving some defendants on wait lists for up to a year.

More: Iowa worst in the nation for state psychiatric beds, report says. How a new plan may help

During that time, their cases are stuck in limbo, limiting how their attorneys can prepare for their defense. Courts, victims and families are similarly trapped in a holding pattern until the defendant is either deemed to be competent or found not restorable to competency.

Worse, in many cases those defendants will spend their months on the waitlist locked in a county jail at taxpayer expense, mentally ill and frequently unmedicated, often for longer than if they had simply pleaded guilty.

Iowa legislators are aware of the problem, and a recent law and a new program starting in Polk County aim to ease some of the pressure on Iowa's competency bottleneck. Even once the program is fully operational, though, experts say Iowa will lack the providers, the facilities and the funding needed to promptly restore criminal defendants to competency.

Why the competency bottleneck? Limited programs, long delays

In criminal cases, if defense attorneys report their clients may not be competent to assist in their defense, the court must suspend the proceedings. Judges who find probable cause to believe defendants are incompetent order them to undergo psychiatric evaluation. And if evaluators find the defendants incompetent, the judge must order treatment designed to restore their ability to understand and participate in their defense.

Under state law, judges have several options. Defendants they find to be a danger to themselves or others are placed in the custody of the Iowa Department of Corrections, which provides competency treatment at the Iowa Medical and Classification Center in Oakdale. If defendants are not believed to pose a danger, they are instead committed to the Iowa Department of Health and Human Services, which provides treatment at the Cherokee Mental Health Institute for adults, or in Independence for juveniles.

If defendants would otherwise be eligible for pretrial release, judges instead can release them with orders that they obtain treatment on their own. However, no outpatient competency restoration programs currently operate in the state, and Thomas said such cases often result in defendants falling through the cracks, with no agency or health care provider having clear authority to force defendants to obtain treatment or to report on their progress.

More: Reynolds signs 'transformative' behavioral health overhaul into Iowa law. What it does:

Both the Department of Corrections and DHHS competency programs have limited capacity and usually have lengthy waiting lists, defense attorneys say — and court records show. Many defendants might have to wait six to nine months just to get into treatment, especially those in the queue for the Iowa Medical and Classification Center program.

Karen Hart Lundy, an attorney with the Des Moines public defender's office, told the Register she's had clients wait for as long as a year.

The Department of Corrections did not respond to inquiries from the Register about its current backlog. Alex Murphy, a spokesman for DHHS, noted that the agency reorganized its facilities last November to provide 12 dedicated beds for competency care. Since then, he said, MHI Cherokee has admitted 58 adults for competency restoration, with an average wait of 27 days. As of July 5, two defendants were on the Cherokee waiting list, he said.

New charges, new diagnoses can occur during waits in jail

Usually, treatment delays leave defendants stuck in county jails, often with few or no treatment options available. Depending on their symptoms, they can spend much of their time in solitary confinement.

"So they're just sitting there, mentally unwell for months on end," Thomas said. "In some cases, people end up, unfortunately, picking up new charges because they are acutely mentally ill and their behavior is erratic. They might be aggressive. If they were able to get in and get treatment, maybe they don't pick up that (charge for) assault on another inmate or assault on an officer."

A long stint in jail awaiting treatment also can have lasting detrimental effects on defendants' already-fragile mental health, especially for those who wind up in solitary confinement due to their behavior, she said.

"We want treatment immediately and consistently," Thomas said. "So the more times that somebody is going on treatment and off treatment and spending a long time without the correct medications, it becomes harder and harder to get them back to baseline or get them stabilized."

Defense attorneys say delays hinder cases, harm client trust

In addition to having to spend months in jail, defendants for whom treatment is delayed also may find their legal defense hindered.

While attorneys can continue some types of trial preparation while a case is stayed, anything that requires clients' participation, such as conducting depositions, is put on hold, said Nick Bailey, a defense attorney based in Des Moines.

"Because they've not gone through the treatment process, we're in limbo," he said. "Memories fade. Evidence dissipates. It's a problem with being able to defend their case."

Previously: Frustration mounts as Iowa man accused in uncle's death awaits psychiatric treatment

Competency treatment also can greatly delay the resolution of low-level criminal cases, Bailey said. If defense attorneys suspect their clients might not be legally competent to plead guilty, they are obligated to raise that with the court, even if it will leave the defendants stuck on a waiting list in jail long after they would otherwise have been released.

"I have an ethical duty to make sure that my client is competent and understands what they're doing," Bailey said. "Human to human, you feel bad that you're filing for a competency evaluation, and sometimes it destroys your working relationship with them because they say, 'Now you're the one holding me in here.'"

Are long delays constitutional? Washington state judge said no

At least some courts around the country have found that lengthy delays in treating incompetent defendants violate their constitutional rights.

In one case, a federal judge ruled in 2015 that Washington state officials were violating prisoners' rights by failing to provide competency evaluations and restoration treatment within seven days of a court order .

"The mentally ill are deserving of the protections of the Constitution that our forefathers so carefully crafted," Judge Marsha Pechman wrote. "The rights protected can be difficult and sometimes costly to secure; however, the Constitution is a guarantee to all people, and is not dependent upon a price tag. The State must honor its obligations under the law."

Pechman has since found the state of Washington in contempt multiple times for ongoing failures to meet those benchmarks, imposing fines of more than $100 million.

Several attorneys interviewed by the Register said they weren't aware of any similar litigation over Iowa's treatment delays, but that the current backlog raises potential constitutional concerns.

"(One of my clients) sat in custody for six or seven months, just by virtue of not being competent, when a like-situated defendant that potentially committed the same offense just because he's being angry or a jerk would've pled guilty and gotten out," Bailey said, adding that in many cases the long delays also can infringe on his clients' right to a fair trial.

Lundy, the defense attorney, said the state has an obligation to provide, in a timely manner, the mental health services it is requiring people to receive.

Previously: Frustration mounts as Iowa man accused in uncle's death awaits psychiatric treatment

"It's not fair to essentially take away someone's rights but then not have the facilities and the resources necessary to get them competent as soon as possible," she said.

Even if a court were to find Iowa's current system constitutional, Lundy said, Iowans should still want a more humane, cost-effective way of treating people with serious mental illness after their arrests as well as before they break the law.

"People think, 'Well, what are we going to do with them?' and they don't realize, our taxes are paying for it," she said, adding that "if the residents of Iowa would understand better or care more, whether they need to focus on money or just what's kind and fair to people who are suffering these sorts of things, they would want more money to go to community-based organizations. … People with mental health issues should not be going to the Polk County Jail."

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com or 715-573-8166 .

Coming Monday

A new program seeks to restore defendants to competency without long waits in jail.

This article originally appeared on Des Moines Register: Iowans found incompetent for trial wait in jail for treatment, their mental health ebbing