Fractured: The Wait Inmates With Mental Illness Endure Because They’re Too Sick For Trial

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April 18, 2023

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About Our Series

You’ve probably heard a lot about our country’s mental health crisis.

Crisis also describes North Carolina’s mental health system. It is harder to access mental health care here than most other states, and that affects everyone … particularly the most vulnerable. Like inmates who are too sick to stand trial. They often wait months in custody for the treatment they need just to be well enough to go to court. As of last month, there were 201 inmates in North Carolina waiting for a state hospital bed.

Crisis describes those who cycle between jail and the streets serving, as one public defender put it, a life sentence … 30 days at a time. Nine in 10 North Carolina jails routinely have no psychiatrist on site, one expert found. Most offer less than two minutes of psychiatric telemedicine per inmate per week.

And crisis describes those who get better in jail, but get little or no follow up on the outside and end up back behind bars.

These are stories of incredible suffering, often hidden. To bring them to light, WFAE, with support from the PBS series FRONTLINE, conducted a year-long investigation that involved more than 100 interviews with inmates, their families, lawyers, sheriffs, doctors, state officials and mental health experts.

Read and listen to the series: FRACTURED

We also gathered data, contacting North Carolina’s 100 courthouses and most jails to build an original database. We wanted to know: How long do inmates with severe mental illness wait for a hospital bed, so they can get well enough to stand trial?

State Officials Don’t Track

Our investigation found that half of North Carolina’s inmates who are incapable to stand trial wait longer than 300 days — sometimes with minimal in-jail treatment — before they get a bed.

State officials say the system reflects chronic underfunding and the nation’s overall mental health crisis — exacerbated by slowdowns and staffing shortages that worsened due to the Covid-19 pandemic. Kody Kinsley, secretary of North Carolina’s Department of Health and Human Services, says the state’s recently passed Medicaid expansion will help.

Another solution might be a new pilot program that aims to restore some inmates to capacity while they’re still in jail or out on bond. The pilots are “a big passion project for me,” Kinsley said. “It’s really where it all comes together.”

For now, behind each of these numbers is a real person, real families whose suffering rarely comes to light. Over the next several weeks, WFAE will tell some of those stories.

In this series, we’ll examine why getting access to mental health care has been difficult in North Carolina. We’ll report how the system strains hospital emergency rooms. We’ll explain why it burdens the jails, the courts, even crime victims. We’ll look at how our fractured health care and legal systems disproportionately affect the poorest and communities of color. And we’ll report on potential solutions in North Carolina — and other states.

Our series is called FRACTURED.

Today, we start with a story about an inmate who’s been in custody awaiting trial almost five years, his lawyer told us, and getting sicker as he waits.

Too Sick To Stand Trial

His name is John. We’re not using his last name to protect his identity. The 32-year-old Charlotte man was charged with arson and attempted murder in 2018, but he’s never had a trial. He’s been cycling between the jail and a state psychiatric hospital for almost five years.

Three months after his arrest, a court found John was incapable to stand trial because he didn’t have the mental capacity to understand the charges against him or assist in his defense, said his attorney, Jason St. Aubin. The legal term for this is “incapable to proceed.” That means he’s not able to stand trial under the U.S. Constitution.

We don’t know John’s exact diagnosis — that’s privileged information. But we know the law says only people living with a mental illness or a “mental defect” like an intellectual disability can be found incapable to proceed. And John’s lawyer, Jason St. Aubin, said his client needs the medication, therapy and services that only a hospital can provide.

So, a court ordered John to a state psychiatric hospital for “restoration” of his capacity. That typically involves medication, some therapy, and a lot of education about the court system … including watching clips from courtroom dramas like Matlock. The restoration worked for John, and in September 2020, he was returned to jail to wait for trial, St. Aubin said. But the pandemic was raging, and the state paused all jury trials. During his long wait for court, John deteriorated. Once again, he was too sick to stand trial.

“I’m pretty angry,” said Eric Witherspoon, John’s stepfather. It was a day in late June and Witherspoon was standing outside Mecklenburg County’s detention center trying to visit John. “He’s been gone for four years, and they still haven’t got a trial for him. I can’t put my hands around it.”

Witherspoon Option 1 horizontal
Photo of Eric Witherspoon (Dana Miller Ervin/WFAE)

Witherspoon was turned away. Family members are not allowed to visit inmates who are in isolation in a disciplinary unit.

John’s there because he’s accused of spitting and throwing feces at guards while he waits. But that kind of behavior is typical of someone who’s mentally ill and isolated, a North Carolina study found. They’re more likely to harm themselves or others. And the American College of Correctional Physicians warns prolonged isolation can worsen mental illness.

Now he’s racked up eight additional felony charges while he’s again waiting for a bed. If he’s prosecuted for the charges from jail, he could get more than 18 years to his sentence, his attorney said.

“The system is so messed up,” Witherspoon said. “I don’t understand how you can put somebody that needs mental care — you can put them in lock him up like he’s in prison. … He’s like thrown to the wolves, and nobody cares.”

Jail officials don’t discuss specific cases like John’s. But Mecklenburg Sheriff Garry McFadden said jail staff also feel the consequences of the system every day. “You think about their charges. Can we get them to a point to understand their charges, where they can go to court or even sign a plea agreement? That is what we’re working towards. But simply having people waiting here for that simply puts a strain on my staff.”

How Long Are The Wait Times?

We know there are 201 inmates with mental illness or deficits waiting for one of the 894 state psychiatric hospital beds so they can be “restored” to go to trial, according to NCDHHS. But, based on conversations with state officials as well as dozens of sheriffs, jail officials and court clerks around the state, we found the state doesn’t track how long inmates actually wait from the time they’re incarcerated until the time they get a bed.

So WFAE wanted to find out. To do that, we contacted all 100 courthouses. We got lists of the defendants who were found incompetent to stand trial, then asked the jails when they were incarcerated, and when they got a bed. Our data represents 63% of the state’s population, and spans from 2016 to 2023.

We found that half of those accused of felonies waited more than 313 days in custody for a bed. The longest waits are in the western part of the state, where John is. In that region, half of those charged with felonies wait more than 363 days. (see graphic)

Julia Ingram and Layna Hong contributed to this graphic. Data collection by Mona Dougani, data analysis by Julia Ingram and Robert Benincasa.
Julia Ingram and Layna Hong contributed to this graphic. Data collection by Mona Dougani, data analysis by Julia Ingram and Robert Benincasa.

It’s a problem that has been a long time in the making in North Carolina. As of 2016, it ranked 39th to 40th in the country for state psychiatric beds per population, according to the Treatment Advocacy Center. Only 600 of the state’s 894 state psychiatric hospital beds are operating — that’s for the state’s 10.7 million residents — due to pandemic-related staffing problems, state officials said.

That’s down from 1,572 beds in 2000, before lawmakers overhauled the mental health system with plans to guide patients to get more mental health care in the community. But that overhaul didn’t work as planned. And the state’s population has since grown by more than 2 million. We’ll detail what happened later in the series.

But long waits are a problem around the country. Mental health advocates in more than a dozen other states have sued over wait times. A federal district court for Washington state held that wait times of more than seven days are unconstitutional, but the state has been unable to meet that timeframe, and litigation is ongoing.

Before the COVID-19 outbreak, inmates had to wait for restoration at only one of North Carolina’s three psychiatric hospitals, said Dr. Carrie Brown, lead psychiatrist for the state hospitals. But wait times really blew up during the pandemic. Shortages in the mental health workforce meant the “whole system got backed up,” Brown says. State hospitals lost one-quarter of their workforce. And staff shortages in outpatient and community settings meant it became harder to discharge hospital patients. As a result, Brown said, patients have been staying in the hospital twice as long as before the pandemic.

Brown says expanding Medicaid will ease the waits because some people who are currently uninsured, will be able to get care before they need a hospital bed.

NCDHHS is also now piloting an in-jail restoration project in Mecklenburg’s detention center. It’s for inmates who are willing to take medication, and who get along with others, according to Nathan Andrews, the psychologist in charge of the pilot in Mecklenburg’s jail.

“Why should you have to only go to the state psychiatric hospital to get capacity restoration services?” Brown asked. “Why can’t you get some capacity restoration services while you’re in the detention center?”

How John Ended Up in Jail

WFAE accompanied John’s attorney, St. Aubin, to the jail seven times over a five-month span. He refused to leave his cell. We’ve pieced together his story from court documents, public records and conversations with family members and St. Aubin.

Here’s what we know about John.

As a child, John liked to sing and play with animals, his stepfather said. But he struggled as a young man, and in 2018, his struggles came to a head.

According to a police report, June 30 of that year, a fire broke out at a Charlotte home for intellectually disabled adults where John was living. No one was injured, but the smoke damage was extensive. Police arrested John for arson and attempted murder. A judge denied WFAE’s request to get bodycam footage of his arrest.

“Earlier in the day, he had a disagreement with folks at the house,” St. Aubin said. “I believe it was over access to video games. He was upset and started allegedly a small fire that became a larger one.”

John was taken to jail and was denied bond. St. Aubin worried John was too sick to understand his legal situation or help with his own defense. An evaluator and a judge agreed. That was the first time John was sent to Broughton psychiatric hospital in Morganton for restoration, but he was kicked out for attacking staff.

“My client operates on the cognitive functional level of a child. All the tests show that he has no coping mechanisms or way to process these kind of emotions or thoughts,” St. Aubin said.

St Aubin Option 2
Photo of Jason St. Aubin (Dana Miller Ervin/WFAE)

John was eventually allowed to return to the hospital. His stepfather, Eric Witherspoon, saw him there and said he was doing well. After over four months of medication and education about the legal process, evaluators decided he was ready to stand trial, his attorney said.

But by then it was September 2020, more than two years since John’s arrest. The pandemic was raging. Court schedules slowed, and jails quarantined inmates to contain the virus’ spread. John was isolated.

“So by the time I was actually able to see him, several months had passed,” St. Aubin said. “And in those several months, he had already stopped taking his medication. You could see visually how he has become disheveled. His hair is unkempt and his stare more vacant.”

Doctors say it’s not unusual for people with serious mental illness to refuse medication. They don’t think they need it. North Carolina jails will only force it with a court order, and that rarely happens.

St. Aubin thought John needed to go back to the hospital. But just getting the evaluation and the court order necessary to make that happen took another six months. In October of 2021 — a year after he returned to jail — John was again found incapable to stand trial. A month later, a court ordered John back to Broughton Hospital. It would be another 14 months till John got a bed, most of that time in isolation, St. Aubin said.

Unlike family members, attorneys are able to meet with inmates in the disciplinary unit. But by last spring, John was in such bad shape that he repeatedly refused to see even his attorney. He felt angry and helpless, and blames everyone connected to the court system, St. Aubin said. He didn’t understand the process that’s enveloped his life.

On one occasion, a deputy told St. Aubin that John had “no mental health.”

On another visit, officers explained through the plexiglass in the visiting area that John wouldn’t get dressed.

“They said that he had ripped up his uniform,” St. Aubin said. “They can’t bring him out because he’s not able to be clothed. So we were told they would try to put him in a new uniform, but they didn’t sound too optimistic to be honest.”

At times, John wouldn’t respond to officers’ commands.

“He decided to lay back down on his bunk,” an officer told St. Aubin. “He won’t respond at this point to any of our verbal commands.”

They Lose Ground

There’s no tally of the number of people who are restored and returned to jail, then get sick again. But a 2017 state health department working group found this cycle was “relatively common” based on anecdotal evidence from the state hospitals.

Dr. Tony Frasca was a psychiatrist at Broughton Hospital in 2015. He remembers patients coming back after they’d gotten better.

“On more than one occasion, I saw the same people,” Frasca said. “Mostly men, mostly Black men, but not exclusively, come back to Broughton in as bad or worse shape as I met them the first time. And that was incredibly disheartening.”

In 2019, Black people made up 44% of North Carolina’s jail population, double their numbers in the general population, according to the Vera Institute of Justice. Later in the series, we’ll detail how, on the whole, poor people and people of color are hit hardest by this system.

Frasca’s never met John, and he doesn’t know the specifics of his case. But he said restoring someone a second time may not be as easy for patients who suffer from the some mental illnesses.

“Every time you treat them, they get less well,” Frasca said. “Every time they get sick, they get sicker, and every time that you try to bring them back, they don’t get quite back to where they were the last time. They lose ground.”

The law requires those who are incapable to proceed to be admitted to a restoration program within 24 hours. But there aren’t enough beds, said attorney Beth Guzman. Now she represents patients. But she represented the hospital on behalf of the state for over a decade. While working there, she came up with a fix:

“What we came up with several years ago was to ask the prosecutor to have the judge write ‘pending bed availability’ on that order, so we can get around that 24-hour requirement,” Guzman explained.

Guzman said hospital staff try to coordinate with attorneys so restored inmates won’t wait long upon return to jail. But that doesn’t always prevent the deterioration. “If you’ve got somebody who is charged with murder and there’s still a lot of work to be done on their charges, they can decompensate and come back to us,” Guzman said.

She describes decompensation: “smearing feces, throwing feces, throwing urine, washing their clothes in the toilet, attacking staff.”

Some of the things John’s accused of doing.

After waiting over a year, John finally got a hospital bed in January. WFAE hoped to visit John. But St. Aubin said John still isn’t healthy enough to speak with visitors, not even his lawyer.

He’s still stuck in the system.

Mona Dougani, Julia Ingram and Robert Benincasa contributed data analysis to this story.

This story is part of a collaboration with WFAE through FRONTLINE’s Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.

Correction: Due to an editing error, an earlier version of the graphic included in this story marked Pitt County (in eastern North Carolina) as having insufficient data. It has now been corrected to show that Pitt County was included in WFAE and FRONTLINE’s analysis.

Additional reporting on this story:

The Story Behind Fractured, a WFAE Investigation — by Dana Miller Ervin

Fractured: Frequently Asked Questions — by Dana Miller Ervin

Methodology: Data Collection — by Robert Benincasa, Mona Dougani, Julia Ingram

Why Data About Capacity to Proceed is Important — by Neil Gowensmith

The National Picture on Wait Times for Restoration
— by Susan McMahon


Dana Miller Ervin, WFAE Reporter, WFAE

Twitter:

@DanaMillerErvin

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