Due process and decency had a big win last week when an Austin judge ruled that defendants needing a forensic bed at a state mental hospital couldn’t be made to wait in jail for more than three weeks.
Forensic beds are the spaces at state mental hospitals set aside for defendants needing psychiatric treatment to get well enough to stand trial, a process called competency restoration. For the past five years, such defendants—three fourths of whom are nonviolent offenders—have waited in jail for an average of six months, both untreated and untried.
The lawsuit, filed in 2007 by Disability Rights Texas against the Texas Department of State Health Services (DSHS), which operates the mental hospitals, alleged that putting mentally ill defendants on a forensic bed waiting list for unreasonable periods of time violated the defendants’ due process rights. State District Judge Orlinda Naranjo agreed, and set 21 days as the maximum period a defendant deemed incompetent to stand trial could be made to wait for a forensic bed. A defendant is considered incompetent if he or she is incapable of understanding the charges against him and assisting in his own defense.
The long wait for competency restoration is an issue that everyone involved knows is a problem, but no one seems fully capable of fixing. People have tried. As the ruling notes, in 2005, DSHS more than doubled the number of dedicated forensic beds. In 2007 and 2011, the agency successfully lobbied the Legislature to allow for shorter commitment terms and more outpatient treatment for nonviolent offenders. The 82nd Legislature also allocated funds for a new 20-bed competency restoration facility in Harris County and passed a bill to count time a defendant serves in or awaiting competency restoration toward his sentence.
Last August, in a miniature version of the present ruling, Austin county Court-at-Law Judge Nancy Hohengarten grew frustrated with the long waits and ordered the Austin State Hospital to accept five defendants immediately, citing due process concerns.
But those beds have to be taken from someone else. “Emergency room patients next on the list to get a bed will now have to wait longer or find psychiatric services elsewhere,” said Christine Mann, of DSHS, told the Austin American-Statesman at the time.
The long waiting lists exist for a reason. Texas has about 2,400 beds at its nine state mental hospitals, less than a third of which are designated for forensic commitments. And the turnover of those beds is slow; competency restoration takes an average of 35 days, according to DSHS; civil commitments—people committed from the general community for emergency care— usually take only seven to ten days.
Judge Naranjo’s ruling did not specify how DSHS would go about complying with the order, and the state has not said yet whether it plans to appeal.
Judge Naranjo notes in her ruling that the forensic bed problem is “due to funding decisions and policy decisions” but says, “these economic decisions made by the State do not outweigh the Incompetent Detainees’ liberty interest.”
And that’s it in a nutshell. Texas ranks dead last among the states in per capita funding for mental health, and the forensic bed crisis is but one place where the state’s economic decisions hurt real people.