In 2009 the Texas legislature amended a law, codified at Article 16.22 of the Code of Criminal Procedure, with the intent to require early identification of mentally ill jail prisoners so they can receive appropriate treatment and consideration upon sentencing.
Bexar County, which includes the city of San Antonio, Texas, has failed to fully apply the state law to its 4,500 jail prisoners, 21% of whom are estimated to have a mental illness.
Under the law, the jail is required to provide a list of possibly mentally ill prisoners to a magistrate within 72 hours of arrest, and the magistrate must order a mental health evaluation and receive a report and recommended course of treatment within 30 days. The magistrate is required to provide a copy of the report to the prosecutor and defense attorney. During this process the criminal case cannot proceed.
State Rep. Pete Gallego sponsored the bill with the aim of seeing criminal justice and mental health resources used more efficiently.
“The goal is to do it up front,” said Gallego. “The way the system was working was, you weren’t catching [mentally ill prisoners] until the tail end, and by then the person had been sitting in jail and needing health care for a period of time.”
However, the new state law designed to address the problem of mentally ill jail prisoners was unfunded, and did not specify which magistrate was responsible for ordering and reviewing the mental health evaluations.
“Over the past several weeks, someone in the jail administration has been e-mailing me a list of persons suspected of having a mental illness,” said Bexar County Criminal Magistrate Judge Andrew Carruthers in a March 2010 memo to jail officials. Carruthers stated his “duties and resources do not encompass compliance” with Article 16.22.
“I have a full-time responsibility working for 10 criminal district courts,” wrote Carruthers. “My schedule will not accommodate that.” The law “says ‘a magistrate.’ It does not say the criminal magistrate of Bexar County.”
Indeed, the phrase “a magistrate” may have confused jail officials. In Texas, any type of state judge, from a Supreme Court justice down to the lowly justice of the peace, can be considered a “magistrate.”
Bexar County Criminal District Court Administrator Melissa Barlow Fisher agreed that the term “a magistrate” in the statute is too vague.
“That’s a part of the problem,” she said. “We don’t know who they mean. And the poor jail doesn’t know who they mean.” Fisher noted there are three full-time and nine part-time magistrate judges at the county’s central magistrates’ office who are “not doing mental health evaluations. That’s not their job.” Further, “Most [Texas] counties are like us. They don’t have the resources and they have not implemented this to the letter of the law, like it should be.”
Bexar County District Judge Mary Roman wrote to the county commissioners, informing them that the county lacked “additional medical personnel, mental health magistrates and administrative staff” needed to follow the law, but was nonetheless in “substantial compliance.” She joined the sheriff and district attorney in arguing that the law was more suited to smaller counties.
Rep. Gallego disagreed, noting that Austin, San Antonio, Houston, Dallas, Fort Worth and El Paso should have higher numbers of prisoners with mental health issues than lower-population counties. He also called “substantial compliance” with the law insufficient.
“The analogy that I’ve used is basketball,” said Gallego. “The ball either goes through the hoop or it doesn’t.”
The case of Alejandro, a severely mentally ill Bexar County jail prisoner, is instructive. At 19, Alejandro started hearing voices and believed that the television and the family’s dachshund were sending him ominous messages. At 23 he punched his father over a longstanding argument about whether Alejandro should see a doctor. Following his arrest, Alejandro’s case was dismissed and he was sent to a state hospital.
Arrested six years later for possession of marijuana, he received probation. He continued being arrested, jailed and placed on probation for almost a dozen misdemeanors over the following 13 years. However, his mental illness made it impossible for him to satisfy the conditions of his probation and Alejandro was violated and thrown in jail seven times for a total of 225 days.
Finally, he was jailed for stepping on his father’s foot without causing injury when he was on probation for driving while intoxicated.
“There was no bruising, really,” Alejandro’s court-appointed attorney, Edward Piker, said. “It was very minor. But he was arrested for assaulting the elderly anyway.”
Possibly without ever hearing about Alejandro’s mental illness, Judge Monica Guerrero found him guilty and added community service and stress education to the terms of his probation. However, he was arrested and incarcerated for reckless driving before completing probation.
Piker admitted that he didn’t subpoena Alejandro’s psychiatric records. “I don’t remember if I specifically said [he suffers from paranoid schizophrenia] or not,” Piker acknowledged.
“I depend on attorneys to find out about anyone’s mental illness,” said Judge Guerrero. “If we find out there’s a hardship or an illness, it could preclude community service.”
Yet Associate Probate Judge Oscar Kazen, who presides over civil commitment hearings for the mentally ill, noted that Article 16.22 was amended to avoid exactly that type of uncertainty.
“Right now [the system] is ad hoc, and it relies on a lot of good luck and good will,” said Judge Kazen. “If you don’t have the luck, somebody can slip by.”
Indeed, it appears that Alejandro, who recently completed an 81-day stint in jail, was one of the unlucky ones who slipped by.
Dr. Sally Taylor, director of psychiatric services at the Bexar County jail, has pushed for strategies to divert the mentally ill from incarceration. If a mental illness makes a prisoner a threat to himself or others, Taylor’s staff sometimes asks the prosecutor to drop charges. If the charges are dropped and space is available, the prisoner is then transferred to a psychiatric facility. Every 72 hours, Taylor’s staff sends a list of prisoners with suspected “severe mental illness” to the county’s four mental health public defenders and a coordinator in a court that has a weekly mental health docket.
Prisoners whose answers to screening questions at booking indicate severe mental illness may be placed in an 18-cell mental health unit at the jail if there are no openings at outside mental health facilities. Taylor’s practices have been cited by county officials as constituting “substantial compliance” with Article 16.22.
The problem is that Article 16.22 requires much more. The law mandates that all prisoners suspected of mental illness be evaluated, not just those suspected of “severe mental illness.” It requires that a magistrate be notified within 72 hours, not public defenders and a court coordinator, and that the magistrate order an evaluation and receive a report within 30 days.
In explaining the focus on “severe mental illness,” Taylor said, “We try to triage them so somebody with a less severe illness is going to wait longer. That’s just the nature of limited resources everywhere.” She also admitted that the mental health evaluations required by Article 16.22 are more extensive than those performed by her staff.
So how are Taylor’s “substantial compliance” practices working? In 2009, with less than three full-time psychiatrists, her staff conducted 8,200 mental health assessments and treated about 3,000 prisoners for mental illness. The jail also had five suicides in 2009, over three times the national average. The jail has a list of nearly 100 mentally ill prisoners awaiting transfer to a state mental health facility. And the situation may soon get worse.
The Texas Department of State Health Services has been told to cut its 2012-2013 budget by 10%. This means $246 million in proposed cuts, including $134 million from mental health services. Texas already ranks 49th in state spending on mental health, according to the Texas Medical Association.
If the budget cuts result in mentally ill prisoners spending more time in jail instead of treatment facilities – the exact situation Article 16.22 was amended to prevent – it will be a case of the state and county being penny-wise and pound-foolish. The mentally ill decompensate in jail, increasing the probability of their ending up in prison or emergency rooms, which costs taxpayers more than it would to identify and treat mentally ill prisoners on the front end.
Indeed, according to a May 2008 cost analysis of Bexar County’s jail diversion program for the mentally ill, which is coordinated through the Center for Health Care Services, “Combining criminal justice and treatment costs during pre-booking diversion was associated with $3,200 in lower costs per person during the first 6 months after diversion.” Absent the jail’s pre-booking diversion program, “costs would have been more than $1.2 million higher during the 6 months immediately after diversion.”
Further, “[p]ost-booking diversion was associated with about $1,200 in lower costs per person [during] the 18- to 24-month period after entry into diversion,” and costs without post-booking diversion “would have been $700,000 higher.”
Bexar County’s jail diversion program reportedly keeps 800 to 1,000 mentally ill people out of jail and emergency rooms each month. The program apparently works well – it received a Gold Award from the American Psychiatric Association in 2006. However, proposed cuts would reduce the Center for Health Care Services’ budget by 20%, and the county lacks necessary funds to comply with the laudable goals of Article 16.22.
“We’re doing everything we can at this point,” said Judge Roman. “We would be glad to do even more, but the resources have to be there, and we’re not in charge of the resources.”
Neither are mentally ill prisoners, of course, but they are the ones who suffer most due to lack of sufficient funding for evaluation and treatment programs. PLN has previously reported on Texas’ shortage of mental hospital beds, which leaves mentally ill prisoners stranded in jail without adequate treatment. [See: PLN, Feb. 2008, p.30].
Sources: San-Antonio Express-News; Article 16.22, Texas Code of Criminal Procedure; www.sacurrent.com; “A Cost Analysis of the Bexar County, Texas, Jail Diversion Program” (RTI International, May 2008)
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