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Wait times for mental health services in Washington state jails worsen as fines spiral

Nov. 8, 2022 Updated Tue., Nov. 8, 2022 at 12:51 p.m.

By Esmy Jimenez The Seattle Times

GRAYS HARBOR COUNTY, Wash. — Monday afternoon would typically be quiet in the seaside town of Ocean Shores. Instead, in January of this year, police officers had been dispatched to a local grocery store twice within an hour because of Joshua Marsh.

Marsh, 40, was barefoot and without a coat in the middle of winter. The store manager thought he was inebriated and asked him to leave but he refused, according to an Ocean Shores police report. Officers issued him a trespass notice and noted Marsh’s conversation was “nonsensical.” Police were called again after Marsh was found climbing onto a semitruck parked outside.

By that evening, Marsh was booked into Grays Harbor County Jail, accused of assaulting officers. He would spend eight months there, waiting to be transferred to a state psychiatric hospital for mental health services.

“They forgot about me pretty much,” said Marsh, speaking by phone from Western State Hospital, where he was ultimately moved in late September.

Marsh, who still has yet to face trial, is one of hundreds of defendants across Washington state who remain in a legal limbo, jailed while waiting for a psychiatric bed as state hospital wait times balloon in violation of a federal court settlement.

Four years after that settlement, referred to as the Trueblood case, the Washington Department of Social and Health Services — the state agency in charge of getting people into mental health services — is still struggling to meet required time frames. In fact, wait times are getting worse, costing hundreds of people in jails, and their loved ones, weeks or months of their lives. The settlement includes fines, so the failure also has cost Washington taxpayers an estimated $98 million since 2018.

‘Emergency point’

To take someone charged with a crime to trial, the defendant first has to understand why they are being tried. If they don’t understand their charges or can’t assist their attorney, they are evaluated by a mental health professional and usually found incompetent.

People in crisis or with a history of mental illness often fall into this category — and that means the court can’t start a trial, let alone issue a verdict.

Instead a judge will order the defendant to be “restored.” And once the person is found competent — which usually takes anywhere from 29 to 90 days — they can stand trial.

But for years, people would sit in jail, unable to get into a state hospital for these restoration services, and their cases would stall. Advocates argued this violated defendants’ constitutional due-process rights in what became the class action federal lawsuit known as Trueblood v. DSHS in 2014.

Ultimately, a settlement in 2018 laid out deadlines for the state to act: Defendants who were potentially incompetent to stand trial would be evaluated within 14 days, and if necessary receive “restoration services” — usually involving a transfer to a state hospital like Western State, medication and educational services — within seven days after that.

If state officials failed, DSHS would be fined. Money from the settlement would then go to funding diversion programs and triage centers where people in crisis could be dropped off by law enforcement rather than taken to jail.

Currently, an estimated 870 people, in and out of jail, are waiting for these competency and restoration services in Washington state.

Only about half of defendants get a competency evaluation on time, the latest October report from DSHS shows.

The data also found that people in jails across Washington were waiting an average of nearly 78 days to get restoration services at a state facility. Fewer than 10% of defendants received services within the mandated time frame.

“We are at an emergency point,” said Rebecca Vasquez, a senior deputy prosecutor with the King County Prosecuting Attorney’s Office. “The system is not working.”

The delays have implications for public safety: Wait times have become so long that judges often dismiss cases with misdemeanors or less egregious crimes rather than hold people for months on end without a trial. In King County alone, Vasquez estimates 350 felony cases are waiting for a competency evaluation or restoration treatment. She finds herself carefully sifting through which cases to prioritize.

“I never thought I’d get to the point where I was considering agreeing to dismiss or release defendants charged with lower level assaults,” she said. “But we’re at the point where we are agreeing to dismiss or release some cases involving felony defendants who are at risk of harm to the community.”

Judges, too, are growing impatient with state officials.

At a criminal hearing last month at the King County Superior Court, Judge Johanna Bender shared her frustrations: “Judges like me are scrambling to try to figure out what to do about the fact that folks are not being transported for care at the hospital on their criminal cases.”

“Although (DSHS) has limited resources, the department has pretty consistently failed to steward those resources in an intentional way.”

Ruth Rivas, Marsh’s public defender from Grays Harbor, finds that the wait times are inexcusable in cases like his.

“He’s done all the time he would do,” she said. “Had he been competent and accepted a guilty plea, he’d be out of jail a long time ago.”

Stuck waiting

Marsh grew up in Chelan. After his parents split up, he moved in with his father in Grays Harbor. They both liked to fish and hunt, and Marsh loved caring for animals, especially snakes and ferrets, his mom said. Eventually Marsh started building houses in the region for work.

His mother, Lynda Marsh, said her son doesn’t have a history of mental illness but was in special education programs in school. In recent years, he has had some struggles with his physical health: He uses a colostomy bag — which he has found difficult to keep clean in jail — and experiences seizures that have kept him from full-time employment.

In the past couple of years, Marsh has had a handful of encounters with law enforcement, getting cited for trespassing, disorderly conduct and resisting arrest — a pattern common among people in crisis or who are facing serious mental health challenges. Last year, Ocean Shores police were called when two people working near Marsh’s home said he cursed at them and attempted to physically fight. Police ended up hitting Marsh with a stun gun after he punched an officer and failed to follow orders, according to the police report.

During Marsh’s arrest in early 2022 outside the grocery store, police say he elbowed an officer in the forehead and made threats while resisting arrest. He was ultimately charged with four counts of assault on officers for that, a subsequent incident at the jail, and the 2021 case at his home.

Marsh told The Seattle Times he doesn’t remember anything about the day at the grocery store in January but shared that his father had died two weeks before the incident.

“The only thing I can think of (is) I had a seizure,” he said.

An evaluation found Marsh not competent and he was ordered to restoration at Western State Hospital in late February.

It was more than six months before he finally got a bed in late September.

Marsh and Rivas, his public defender, said other defendants were transferred to Western State faster, despite arriving after him. Hospital officials have to triage: Those who are sickest are prioritized.

“He just sort of fell right in the middle,” said Rivas, “Not competent, but not dangerous enough to get expedited (to a psychiatric facility). But perhaps perceived by some as too dangerous to go into the community.”

When someone like Marsh is held past the legal time frames for services, judges can sanction DSHS with fines ranging from $500 to $1,500 a day. Since 2018, DSHS estimates that amounts to $98 million for breach of the settlement. This money goes to fund mental health programs for people in the criminal legal system.

Judges separately can also issue what are called “compensatory sanctions” that are paid to defendants or someone tasked with their care. Marsh currently has around $15,000 sitting in his jail account, Rivas said.

According to DSHS, it does not have a full account of sanctions to individual defendants, as they are case-by-case and vary according to judges in each county.

Demand rises

The current situation is one of the ripple effects of underfunding mental and behavioral health services for decades, leaving jails as reluctant mental health providers for many in the system.

State hospital officials see the backlog of cases and point to COVID-19; how it slowed down the courts, forced them to quarantine patients during outbreaks, and the stress it caused for staff at the hospitals and jails, causing dozens to leave the field.

Still, data from DSHS shows demand for competency and restoration services was growing even before the pandemic.

In 2015, judges were ordering an average of 222 competency evaluations a month. By the end of 2019 that number jumped to 402 evaluations, and in 2022, the average has peaked at 558.

Restorations follow a similar trend. Since 2015, the number of restorations ordered has more than doubled from 75 to now 178 a month.

State officials like Dr. Thomas Kinlen, the director of the Office of Forensic Mental Health, the arm of DSHS tasked with providing people competency and restoration services, said they’re not sure why this is happening. Kinlen hypothesized that contributing factors could include stronger drugs on the street, such as fentanyl and methamphetamine, and better mental health screenings at jails with attorneys more likely to recommend evaluations, among other things.

“We do not have a definitive answer,” he said.

State officials tried to make space for the increasing demand by requiring state psychiatric hospitals to prioritize patients coming in through jails, under Gov. Jay Inslee’s 2018 plan that aimed to move patients coming through the civil court system into small local mental health facilities.

Still, Kinlen said, the state hospitals end up housing many people who are found non-restorable, or too sick to ever stand trial, and considered a risk to release back into the community. These are known as “civil conversion” patients, and they often stay at state hospitals much longer than a patient who cycles through the criminal court system.

“One civil conversion basically knocks out (bed availability for) four competency individuals because they’re not able to get to that same bed that would have been available,” Kinlen explained.

There also are limits to the restoration treatment provided at state psychiatric hospitals. While treatment implies therapy, it by and large consists of medication and classes to teach defendants about how to communicate with their attorney and the roles of different court officials.

“Historically, that’s a pretty low bar,” said Kinlen. Restoration doesn’t help defendants with things like anger management or vocational issues, either.

For Marsh, a resolution to his criminal case could be in sight: Last Wednesday he was moved back to the Grays Harbor County Jail, and his lawyer expects he could be accepted into a diversion program soon that will help with mental health care and other social services. Still, the months in jail have led to new problems.

His mother, Lynda Marsh, said he is likely to lose his house, which is currently cited by the city of Ocean Shores as unfit for occupancy; there’s scrap wood and metal in the front yard and Marsh hasn’t been able to clean up or make repairs while he’s been in jail. His driver’s license expired during this last year, and he will need to file for disability in order to have a source of income.

He’s also hoping to finally bury his father and grieve.

“It’s just one great big mess,” his mother said.

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