In April 2015, Judge Pechman of the United States District Court in the Western District of Washington issued a landmark decision in a lawsuit brought against the Department of Social and Health Services in Washington. The case was a class action lawsuit brought by Disability Rights Washington on behalf of incarcerated individuals who had been ordered by a court to undergo a competency evaluation. In her Findings of Fact and Conclusions of Law, Judge Pechman found that the rights of incarcerated defendants were being violated because of the often lengthy delays in obtaining competency evaluations and providing restoration of competency. She went on to order the Department of Social and Health Services to implement a plan which would allow all competency evaluations to be completed within 7 days of a court's order.
The statistics cited by Judge Pechman, which are shaky at best due to poor data collection by the state hospitals, concluded the average wait time for an individual in custody to receive an evaluation from Western State Hospital is 14.7 days and 56.3 days from Eastern State Hospital. What is disturbing about this data is many of these individuals would serve far less time, if any time at all, in jail if they entered a guilty plea to the crime with which they are charged. However, due to the constitutional right to participate in one's defense as well as ethical obligations of attorneys and the court, an individual who is believed to not be competent to assist in their own defense must undergo a competency evaluation prior to any court action proceeding.
The impact of a competency evaluation is significant. For individuals who are found to be competent, they may have spent significant time in jail awaiting a competency evaluation only to have the criminal matter proceed. On the other hand, individuals who are found incompetent face a much more uncertain future. In misdemeanor cases which are non-serious, such as a criminal trespass, usually the result of the incompetency finding will be a dismissal. In serious cases or felonies the court can order that a person go through competency restoration which will often result in being involuntary committed to one of the state's mental health hospitals. The involuntary commitment could end up being as long as 180 days.
Again, one of the concerning factor is the extended period of time these individuals are spending in jail waiting for limited bed dates. In her ruling, Judge Pechman described the abysmal conditions defendants are kept in while awaiting mental health treatment. Most are kept in solitary confinement or suicide watch (a type of solitary confinement). This means at least 23 hours of solitude in a small cell without human interaction. Depending on staffing schedules, the one hour a day a person in solitary is allowed to be out may come at any time – even 2:00 a.m. This clearly limits a person's ability to have contact with any support system in the community. Additionally, the vast majority of these individuals are not provided any medication and are certainly not provided mental health treatment. Jails are simply not equipped to provide the necessary services to individuals who are mentally ill.
Despite the mandate from the Court requiring sweeping changes, in a recent monthly status report published by the Department of Social and Health Services the lack of progress is somewhat troubling. Based on the status reports filed in May and June, the court appointed monitor wrote aquarterly report citing concerns about the agency's ability to comply with the court order and noted lack of progress towards the court ordered outcomes. The monitor does credit the State for taking action, but ultimately the actions may be too little too late.
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